Date: 20030612
Docket: IMM-2988-02
Citation: 2003 FCT 734
OTTAWA, ONTARIO, this 12th day of June 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
NAFICE SAWAN, MAGIDA SAWAN,
MEHDI SAWAN AND MELANIE SAWAN
Applicants
and
THE MINISTER OF CITIZENSHIP A ND IMMIGRATION
Respondent
REASONS FOR ORDER
INTRODUCTION
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 and section 82.1 of the former Immigration Act, R.S.C. 1985, c. I-2, (the —former Act"), upon leave being granted by this Court on February 7, 2003, of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board" or the "CRDD"), dated June 8, 2002, wherein the Board found Ms. Nafice Sawan and her family (the "Applicants") not to be Convention refugees. The Applicants seek an order setting aside the Board's decision and an order that a differently constituted panel reconsider their refugee claims.
FACTS
[2] Ms. Nafice Swan (the "principal Applicant") is a citizen of Lebanon. Magida and Melanie Sawan are the principal Applicant's daughters and Mehdi Sawan is the principal Applicant's son. They are all citizens of Lebanon.
[3] The Applicants alleged a well-founded fear of persecution at the hands of the Lebanese and Syrian authorities, as well as from members of Hizbollah, by reason of imputed political opinion and membership in a particular social group, namely their family.
[4] The principal Applicant and her daughters, as women facing gender-related persecution also claimed fear of persecution by reason of their membership in a particular social group.
[5] Mr. Mahmoud Sawan, the principal Applicant's husband and the father of the three other Applicants, owned a trucking business. His business was located in Barasheet, in southern Lebanon, and he performed business transactions with Israelis and conducted cross-border transactions into Israel.
[6] The Applicants claimed that in 1985, in the town of Saadanayel, Mr. Sawan was arrested and mistreated by Syrian authorities for putting up posters opposed to the Syrian occupation of Lebanon
[7] In June 2000, after Israel had withdrawn from Lebanon, the Applicants claimed that Mr. Sawan was visited a few times by members of Hizbollah and they threatened to kill him and his family because they claimed he was working with, and was a spy for, Israelis.
[8] The principal Applicant also claimed that her husband told her that he was beaten three times by local Lebanese. The people who had beaten him also drove around their house on two occasions. The principal Applicant claimed her husband was at home and recognized them.
[9] The Applicants claimed that they did not know about these threats until July 2000, when Mr. Sawan sold his truck and told his family why he wanted the whole family to leave the country.
[10] The entire family left Lebanon in August 2000. A friend of Mr. Sawan helped smuggle them into Cyprus by boat, where they spent ten days. The Applicants claimed that Mr. Mahmoud Sawan did not accompany them to North America and remained in Cyprus because of financial restrictions. He was not a party to the refugee claim.
[11] The Applicants first arrived in the United States, where they spent three weeks prior to entering Canada on September 10, 2000. They made their claims for Convention refugee status in Canada on September 27, 2000.
[12] The hearing of the Applicants' refugee claim took place on April 30, 2002 in Edmonton, Alberta. The principal Applicant, her brother, Khaled Sawan, who is a Canadian citizen, and the principal Applicant's eldest daughter, Magida Sawan, testified at the hearing.
[13] The Board's decision that the Applicants were not Convention refugees was dated June 8, 2002. The Applicants filed their application for leave and judicial review of that decision on June 26, 2002.
The Board's Decision
[14] The Board found that the principal Applicant had testified in a vague and inconsistent manner and had been unable to answer many questions. The Board was not satisfied that the explanation of cultural differences (that women in Lebanon were not always informed of decisions) fully explained the principal Applicant's lack of knowledge regarding incidents that were allegedly crucial to her family's safety. The Board did not, however, base its ultimate conclusion to refuse the Applicants' refugee claim on the basis of credibility concerns.
[15] The Board noted that the Applicants adduced no evidence of "any past difficulty" they had suffered personally. The Board concluded that the incidents experienced by Mr. Sawan were not "serious, repetitive, or persistent to cumulatively amount to persecution" and Mr. Sawan's experiences did not form a basis for a well-founded fear of persecution by reason of political opinion. By extension, the Board found that the Applicants, on a balance of probabilities, would not be at risk of persecution by reasons of imputed political opinion, or by reason of their association as close family members to Mr. Sawan.
[16] The Board also found that, based on the documentary evidence, even if Mr. Sawan was to face prosecution for his alleged involvement with Israelis as a "suspected collaborator," he would receive due process and the penalties did not appear disproportionate to the objective of the law.
[17] Finally, the Board found that the female Applicants claimed fear of persecution based on the risk they would face as women, if returned to Lebanon, was not well-founded. The Board found that the female Applicants could return to Saadanayel and that any risk related to the pretrial detention for women was not applicable, given the Board's finding that the Applicants did not face a well-founded fear of persecution due to imputed political opinion or by reason of their familial association with Mr. Mahmoud Sawan.
ISSUES
[18] 1. Did the Board base its decision on an erroneous finding of fact, made in a perverse or capricious manner or without regard to the material before it?
2. Did the Board err in law in making its decision?
ARGUMENTS
Applicants
Issue #1: Erroneous findings of fact and credibility
[19] The Applicants submit that the Board based its negative decision on findings of credibility that were perversely drawn. They argue that the Board's findings were not consistent with the consideration that in their culture women are not informed of, or entitled to question, the exact activities of men's work. The Board's finding that cultural differences were not sufficient to explain its credibility concerns about the principal Applicant's testimony was never really addressed. This gave the Board a tainted view of the balance of the evidence.
[20] The Board also expressed credibility concerns related to the discrepancies between the principal Applicant's testimony and the testimony of her brother, Khaled Sawan, over the Applicants' arrival in Canada. The Applicants submit that, as the Board did not express any other credibility concerns relative to Khaled Sawan's testimony, his testimony given under oath should be accepted as the truth and their refugee claim should have been assessed on the balance of credible evidence : Mahmud v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 309.
[21] The Applicants further submit that the claim that Mr. Mahmoud Sawan would be regarded as a suspected Israeli collaborator was supported by the documentary evidence which was before the Board. Khaled Sawan's testimony, which should be accepted for the reasoning mentioned above, was that Mahmoud Sawan had engaged in cross-border trading with Israel and that members of the Hizbollah inquired of Mahmoud Sawan's mother about the Applicants whereabouts. Khaled Sawan also testified about the execution of eight people in a similar situation to Mahmoud Sawan and the extreme level of anger in Lebanon faced by individuals and their families who are suspected of having collaborated with Israel. If the Board did not accept this evidence, it failed to state why in clear and unmistakable terms.
[22] The Applicants submit that the Board did not refer in its reasons to the evidence of Khaled Sawan, which supported the Applicants' refugee claims. Hence, there is an apprehension that the Board made an erroneous finding of fact without regard to the material before it: Khan v. Canada (Minister of Citizenship and Immigration) (1999), 163 F.T.R. 127.
[23] The Applicants say that the Board ignored relevant documentary evidence regarding the unfairness of trials in Lebanon and alleged human rights abuses of detainees prior to trial. In fact, the Applicants assert that there is conflicting evidence within a key source cited by the Board in its reasons, namely the April, 2001, Country Assessment of Lebanon, produced by the Country Information & Policy Unit, Immigration & Nationality Directorate, Home Office U.K. (the "U.K. Country Assessment Report").
[24] The Applicants submit that the Board erred by not stating in its reasons why it preferred part of the U.K. Country Assessment Report over other parts of the same report that raised human rights concerns.
Issue # 2: Erroneous in law
[25] The Applicants characterize the negative inference drawn by the Board regarding the minor Applicants attending schools in the Saadanayel area prior to June 2000 as an error in law, as it misinterpreted the Applicants' evidence. The Applicants claimed fear of persecution did not arise until June, 2000, when Israel withdrew from south Lebanon. Hence, drawing an adverse inference from the fact that the minor Applicants attended school, as per their normal routine, and had no difficulties prior to June 2000 is in error.
[26] The Applicants further submit that the Board's finding that the Applicants' relatives continue to live in the area of Saadanayel, Lebanon, and could provide a supportive and protective family group for the female Applicants who claimed a fear of gender-related persecution, ignored certain facts. The family members who remain in Saadanayel have not been involved in previous business transactions with Israelis and are not directly related to someone who has had direct dealings with Israelis. The Applicants' situation is thus different from their relatives in Saadanayel.
[27] Further, the Applicants argue that because they were previously able to live in Saadanayel up to June, 2000 without incident does not mean it is safe for them to return there now. This finding, in the Applicants' view, is an error in law in that the Board misinterpreted the evidence before it.
[28] Finally, the Applicants submit that it was unreasonable for the Board to find that physical attacks by the same persecutors on three separate occasions were not sufficiently serious, repetitive or persistent to cumulatively amount to persecution.
Respondent
[29] The Respondent submits that only evidence that was before the Board should be considered on an application for judicial review. In this regard, evidence related to the death of two of Mahmoud Sawan's relatives in 1999 should not be considered by this Court as it was only brought up when the principal Applicant filed for this judicial review. It was not mentioned in her PIF narrative or her testimony before the Board.
[30] Further, the Respondent takes issue with the principal Applicant's description in her affidavit that her husband was attacked by Hizbollah members, when the evidence presented to the Board was that her husband was beaten by Lebanese citizens. This evidence should not be considered by this Court.
[31] The Respondent argues that the standard of review for findings of fact is patent unreasonableness: Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793.
[32] Relying on Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), the Respondent argues that credibility and the weight of evidence are matters for the Board to decide and, provided the Board's conclusions and inferences are reasonably open to it on the record, there is no basis for interfering with its decision. The Board is entitled to make adverse findings of credibility not only based on internal contradictions or discrepancies in testimony but also on the basis that the evidence is implausible: Aguebor, supra. Relying on Chaudri v. Canada (Minister of Employment and Immigration) (1986), 69 N.R. 114 (F.C.A.) and Miranda v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81, the Respondent submits that this Court should only interfere with a Board's finding of fact that has been perversely or capriciously made and is central to its decision to reject the Applicants' claim.
[33] The Respondent argues that the Applicants' mere disagreement with the findings of the Board does not constitute patent unreasonableness. The factual findings of the Board in this case are supported by the evidence that was before it.
[34] The Respondent submits that determining whether harassment amounts to persecution is a question of mixed fact and law that is within the expertise of the Board and should not be interfered with unless it is clearly wrong. In this regard, the Respondent relies on Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.).
[35] The Respondent also relies on reasoning from the recent Supreme Court of Canada decision in Housen v. Nikolaisen, [2002] S.C.J. No. 31 (QL), where the Supreme Court determined that, in the context of a negligence case, an appellate court should only intervene on questions of mixed fact and law were there is a "palpable and overriding error."
[36] The Respondent points out that the overall credibility of the Applicants was impugned because of inconsistencies between the various testimonies before the Board and the unsatisfactory testimony of the principal Applicant.
[37] The Respondent also argues that the principal Applicant's brother did not testify that the Applicant's husband had done business with Israelis, but only that others said that her husband went to Israel.
[38] The Respondent submits that the presumption that sworn evidence is true, as was held in Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302 (C.A.), can be rebutted if there are valid reasons for doubting its truthfulness. In this case the Board had valid reasons for doubting the Applicants' truthfulness.
[39] The Respondent further submits that the Board's failure to specifically mention certain evidence does not mean that it did not consider that evidence. Relying on Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102 and D'Souza v. Minister of Employment and Immigration, [1983] 1 F.C. 343 (C.A.), the Respondent states that a board will be assumed to have considered all the material before it, unless there is evidence to the contrary. The Applicants here are only disagreeing with the weight assigned to some of the evidence by the Board.
[40] The Respondent distinguishes Khan, supra, relied on by the Applicants, on the basis that in that case obvious errors in some documents led the Court to conclude that certain documents had not been considered. This is not the situation in the case at bar.
[41] The Respondent submits that the Board in this case properly considered the definition of "persecution", in line with the cases of Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), Olearczyk v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 18 (F.C.A.), Murugiah v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 230 and Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
[42] The Respondent points out that, cumulatively, acts which may individually not amount to persecution, may be seen as persecution. The Board is empowered to decide whether incidents of harassment or discrimination are sufficiently serious to, cumulatively, amount to persecution. The court should only intervene when the conclusion reached on this issue appears to be capricious or unreasonable. The decision of the Board in this case was reasonably open to it and in accordance with Sagharichi, supra.
[43] The Board's conclusion that isolated threats and three incidents of physical mistreatment experienced by Mahmoud Sawan, within a short period of time, did not constitute persecution was neither capricious nor unreasonable.
ANALYSIS
[44] As a preliminary matter, dealing with the Respondent's objection to certain portions of the principal Applicant's affidavit, the Applicant did indeed mention that two of her husband's relatives had been killed by the Hizbollah in 1999 in her PIF narrative. She states that they were killed "about 2 years ago". Her PIF was signed January 11, 2001. Hence, evidence that the Applicant claimed that two of her husband's relatives had been killed by the Hizbollah in 1999 was before the Board and this portion of the principal Applicant's affidavit is certainly admissible.
[45] The principal Applicant's PIF narrative and the statutory declaration provided to CIC when she initiated her refugee claim both detail that Hizbollah was threatening her husband and their family. Morever, in her oral testimony before the Board, the principal Applicant stated that her husband told her that he had been attacked by Lebanese who belonged to Hizbollah.
[46] Based on the above evidence which was before the Board, the Respondent's objections to certain portions of the principal Applicant's affidavit are without merit and should be disregarded.
[47] There are several problems in the manner in which the Board analysed the Applicants' refugee claim. While the Board stated that there were "blatant discrepancies" between the testimony of the principal Applicant and her brother, this is not the basis on which the Board denied their claim. Rather, the Board found that there was a lack of sufficient evidence to establish, on a balance of probabilities, that Mr. Sawan would be targeted as a "suspected collaborator" with Israel and be at risk of persecution if returned to Lebanon. The Respondent acknowledges that this is the case and says that the Board's concerns about credibility only came into play when it was asked to give the Applicants the benefit of the doubt.
[48] The Board then analysed documentary evidence as to the treatment of suspected collaborators and came to the conclusion that, even if Mahmoud Sawan was to face prosecution by the Lebanese authorities for alleged collaboration with the Israelis, such prosecution would involve due process and the penalties that could be imposed would not be disproportionate to the objective of the law.
[49] The only evidence the Board had of the principal Applicant's husband doing business in Israel came from her brother's testimony. He had heard from people in the south that the husband had been crossing into the Israel-occupied area. The Board found that there was insufficient reliable evidence to establish, on a balance of probabilities, that Mr. Sawan would be targeted and be at risk of persecution if he were to return to Lebanon. Any discrepancies, however, that the Board found between Khaled Sawan's and the principal Applicant's testimony related to, as stated in the Board's reasons, "the family's entrance into Canada."
[50] The Board does not provide any reasoning as to why it did not accept Khaled Sawan's testimony (on the issue of what he had heard about Mr. Sawan's transport of goods into Israel) as providing sufficient reliable evidence of risk of persecution. Possibly the Board was not persuaded by hearsay evidence, as Khaled Sawan testified that he had heard from others that Mahmoud Sawan was delivering goods into the Israeli area. However, in my view, if this was so, the Board should have articulated such concerns in its reasons and not left the matter open for speculation. It is not clear whether the Board did not believe the evidence of the principal Applicant's brother or whether it accepted that evidence but felt it did not carry sufficient weight to convince the panel that a risk of persecution existed. The Board did not fairly apply the principle set out in Maldonado, supra, to the factual context of this case. The Federal Court of Appeal stated in Maldonado, supra at page 650:
When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness. On this record, I am unable to discover valid reasons for the Board doubting the truth of the applicant's allegations above referred to.
[51] In my view, the Respondent is wrong in making the blanket statement in his written argument at paragraph 24 that there were "ample and valid reasons" for doubting the truthfulness of the Applicants' testimony.
[52] Secondly, the Board comes to a conclusion regarding the treatment and penalties Mr. Sawan and, by extension, his family would face, stating that they "do not appear disproportionate to the objective of the law." Here, the Board has made a comparison, without fully analysing the "objective of the law." In my view, this was a critical determination for the Board's final conclusion that Mahmoud Sawan and the Applicants did not face a well-founded fear of persecution.
[53] This finding indicates that some sort of comparison of the proportionality of the objective of the law with the process and penalties which face individuals charged with "entering Israel and doing business with the enemy" should have been part of the Board's analysis. Indeed, one is left wondering what objective of the law the Board considered. As held in Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (C.A.)(QL), written reasons of the Board must be sufficiently clear, precise and intelligible so that a claimant can understand why the claim has failed and decide whether to seek leave to appeal.
[54] Thirdly, the Board appears to have misapplied the significance of the young Applicants attending school in the Saadanayel area up to June 2000. The persecutory incidents against Mahmoud Sawan, described by the principal Applicant, were claimed to have begun in June 2000. The lack of problems for the Applicants in the Saadanayel area up to that point does not create the inference that they lived safely there during the time of the alleged persecution.
[55] The documentary evidence states that Israel began its withdrawal from its "security zone" in the south of Lebanon in May 2000 and trials of suspected Israeli "collaborators" began in June 2000. The Board has, in my view, drawn an illogical adverse inference against the Applicants.
[56] The Board states that this factual finding and inference "bolsters" the previous finding that the Applicants would not face a well-founded fear of persecution by reason of imputed political opinion or membership in a particular social group. Hence, as this finding was a secondary underpinning to the Board's final conclusion, the Board made a perverse finding of fact in this regard, contrary to section 18.1(4)(d) of the Federal Court Act.
[57] The cases of Chaudri, supra, and Miranda, supra, cited by the Respondent, stand for the proposition that irrational errors in factual findings and application of the facts must be relevant and material to the decision reached in order for the Court to intervene. In my view, the Board's finding on the fact that the inference drawn on this issue "bolstered" its finding that the Applicants claimed risk of persecution was not well-founded, was an error relevant and material to the Board's final conclusion.
[58] Fourthly, the Applicants challenge the Board's use and interpretation of the documentary evidence and, in particular, the U.K. Country Assessment Report. The Applicants say that the Board ignored parts of the documentary evidence that did not support its conclusions, and demonstrated that those suspected of collaborating with Israel were dealt with harshly, contrary to international human rights standards, by the Lebanese authorities.
[59] In D'Souza, supra, the Federal Court of Appeal held that the Immigration Appeal Board was not required to refer to every piece of evidence before it and that it could not be presumed from a failure to mention every feature of the evidence that it had not been taken into account. Further, in the case of Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.) (QL), the Federal Court of Appeal held that a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown.
[60] In the case at bar, there is a reasonable apprehension that the Board did not fully consider all the evidence before it. The Respondent argues that the Report as a whole supports the Board's conclusions, but the U.K. Country Assessment Report of Lebanon refers to unfairness in the trial process of those suspected of collaborating with the Israelis, and human rights abuses in detention. Such evidence was contradictory to the conclusions of the Board and should have been addressed in accordance with the principles enunciated by Evans J., as he then was, in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.
CONCLUSION
[61] In conclusion, I feel that there are sufficient reviewable errors in the Board's decision to render it unsafe under the circumstances. The application will be allowed and the matter returned for redetermination by a differently constituted panel.
[62] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an Order will be issued.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2988-02
STYLE OF CAUSE: Nafice Sawan, Magida Sawan, Mehdi Sawan and
Melanie Sawan v. The Minister of Citizenship
and Immigration
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: May 5, 2003
DATED: June 12, 2003
APPEARANCES:
Mr. Simon Yu FOR APPLICANTS
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Simon K. Yu FOR APPLICANTS
Edmonton, Alberta
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada