Date: 20030808
Docket: IMM-553-02
Citation: 2003 FC 964
Toronto, Ontario, August 8th, 2003
Present: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
GABER ZAHER WAHBA
AMAL MENYAS
MARINA WAHBA
KIRLLOS WAHBA
KATRIN WAHBA and
MONICA WAHBA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated January 14, 2002, wherein the Board determined that the applicants are not Convention refugees.
[2] The applicants are citizens of Sudan. The applicants are Coptic Christians and base their claim to a well-founded fear of persecution on their religion.
[3] An active member in his church, Gaber Zaher Wahba (the "principal applicant") became especially involved in the social service aspect of the Church. In this respect, the principal applicant was responsible for the welfare of displaced persons from the south who had sought refuge.
[4] On December 24, 2000, the principal applicant was distributing food and other items to refugees and meeting with them. Security officers came and broke up the gathering. The principal applicant was beaten, arrested and taken to security offices, where he was detained until January 10, 2001. The principal applicant stated that he was beaten because he did not convert to Islam. He was released when he signed an undertaking that he would no longer participate in the activities of the Church. The principal applicant stated that his son was beaten when he refused to join Islamic religious classes. The principal applicant also stated in his Personal Information Form ("PIF") that he was threatened that either he accept Islam or risk being drafted into the Popular Defence Forces ("PDF"), or even be killed.
[5] The principal applicant stated that surveillance of his home ceased at 10:00 p.m. However, he also stated that security agents arrived at his home and mistreated him at 11:00 p.m. in February 2001. At the hearing, he stated that the security forces beat him in front of his family and smashed religious items. Again, they wanted him to change his religion otherwise he would be sent to the PDF and killed.
[6] The applicants left Sudan on March 11, 2001. They entered Canada on March 12, 2001, via the United States.
[7] The Board stated in part at page 3 of its decision:
The principal claimant alleges that if he returns to Sudan he will again come under serious pressure to give up his faith and face the risk of being sent to his death through the PDF. The adult female claimant alleges that she and the minor claimants would be taken for Islamic lessons, she would be threatened with rape, her son would be beaten, the children would be orphaned and her son could be taken by the PDF.
[8] The Board found the applicants not to be Convention refugees.
[9] This is the judicial review of the decision of the Board.
Applicants' Submissions
[10] The applicants submit that the Board misconstrued and overlooked evidence. It is submitted that the Board capriciously preferred non-applicable inferences from documentary evidence over the testimony of the applicants.
[11] The applicants submit that there was no evidence to support the key findings of the Board and that it otherwise comprehensively misconstrued the evidence of the applicants.
Respondent's Submissions
[12] The respondent submits that the Board did not err in law in determining that the applicants were not Convention refugees.
[13] The respondent submits that the credibility and plausibility findings made by the Board were entirely reasonable, and that it is not open to this Court to intervene.
[14] The respondent submits that the Board did not err in its assessment of the objective evidence before it.
Issues
[15] 1. Did the Board err in law in determining the objective evidence concerning Sudan
did not support a well-founded fear of persecution for persons of the profile of the applicants as Christians?
2. Did the Board make its credibility or plausibility findings in a perverse or capricious manner or without regard to the material before it?
Relevant Statutory Provision
[16] Subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 defines "Convention refugee" as follows:
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"Convention refugee" means any person who |
« réfugié au sens de la Convention » Toute personne: |
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(a) 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) 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: |
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(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or |
(i) soit se trouve hors du pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, |
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(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and |
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
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(b) has not ceased to be a Convention refugee by virtue of subsection (2),
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b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). |
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but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci don't le texte est reproduit à l'annexe de la présente loi. |
Analysis and Decision
[17] Issue 1
Did the Board err in law in determining the objective evidence concerning Sudan
did not support a well-founded fear of persecution for persons of the profile of the applicants as Christians?
The Board at page 9 of its decision stated:
Documentary Evidence
What this claim really turns upon, in the view of the panel, is the question of whether individuals with the claimants' profile are at serious risk of persecution as Christians in Sudan. To assess this, the panel turned to the documentary evidence.
[18] The request for information by the Board requested information on the following subject (tribunal record, page 92):
Subject: Sudan: Difficulties for people distributing food and clothing in Khartoum for the Catholic Church; Christian charities or charities helping Christians operating in Khartoum (2000 - 2001)
Regional Office: 2
From: Research Directorate, Immigration and Refugee Board, Ottawa
[19] The response stated in part as follows:
No information about difficulties for people distributing food and clothing in Khartoum for the Catholic Church could be found among the sources consulted by the Research Directorate.
Regarding Christian charities or charities helping Christians, the following information may be useful. However, it does not specifically mention whether the "religiously oriented organizations" are charities or not. In the 2000 Annual Report on International Religious Freedom, the United States Department of State states:
Missionaries continue to do other work, and a wide range of Christian missionary groups operated in both government and rebel-controlled areas of the country. However, authorities often harassed foreign missionaries and other religiously oriented organizations and delayed their requests for work permits and residence visas. . . . The Government is generally least restrictive of Christian groups that historically have had a presence in the country, including Copts, Roman Catholics, and Greek Orthodox, and is more restrictive of newer arrivals (5 September 2000, Section l).
The Report goes on to say:
Catholic priests report that they routinely are stopped and interrogated by police. Security forces also detained persons apparently in relation to their religious beliefs and activities. Generally, detentions based nominally on religion were of limited duration; because the practice of religion is not technically illegal, detainees could not be held formally on those grounds indefinitely (ibid.).
No other information about Christian charities or charities helping Christians operating in Khartoum could be found among the sources consulted by the Research Directorate.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of sources consulted in researching this Information Request.
[20] It is obvious from the request that the applicants sought information about difficulties for people distributing food and clothing for the Catholic Church, Christian charities or charities helping Christians operating in Khartoum. The applicants are Coptic Christians. The request for information was about the difficulties of the Catholic Church and it appears that the reply seemed to be based upon groups associated with the Catholic Church. In my view, if information was to be sought for use in reaching a decision, that information should have been in relation to the church to which the applicants belong. The Court has no way of knowing what information might have been provided if the request had been in relation to Coptic Christians. The evidence relied on by the Board did not relate to Coptic Christians and therefore, the Board made an error in this respect.
[21] Issue 2
Did the Board make its credibility or plausibility findings in a perverse or capricious manner or without regard to the material before it?
It seems to me that the Board's findings based on the documentary evidence are closely intertwined with its credibility and plausibility findings. I am unable to determine how much the information received by the Board impacted on its credibility and plausibility findings.
[22] I am therefore of the view that the Board made a reviewable error and the application for judicial review must be allowed. The matter will be submitted to a different panel of the Board for reconsideration.
[23] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed. The matter will be submitted to a different panel of the Board for reconsideration.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-553-02
STYLE OF CAUSE: GABER ZAHER WAHBA
AMAL MENYAS
MARINA WAHBA
KIRLLOS WAHBA
KATRIN WAHBA and
MONICA WAHBA
APPLICANTS
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
RESPONDENT
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 12, 2003
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
APPEARANCES: Mr. John Guoba
FOR APPLICANTS
Mr. Jamie Todd
FOR RESPONDENT
SOLICITORS OF RECORD: John M. Guoba
Toronto, Ontario
FOR APPLICANTS
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
Date: 20030808
Docket: IMM-553-02
BETWEEN:
GABER ZAHER WAHBA
AMAL MENYAS
MARINA WAHBA
KIRLLOS WAHBA
KATRIN WAHBA
and MONICA WAHBA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER