Date: 20031103
Docket: IMM-779-03
Citation: 2003 FC 1279
Ottawa, Ontario this 3rd day of November, 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
NABIL TOUMA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Nabil Touma (the "Applicant") seeks judicial review of the decision of the Refugee Protection Division, Immigration and Refugee Board (the "Board"), dated January 8, 2003. In its decision, the Board determined that the Applicant is not a Convention refugee.
[2] The Applicant is a Syrian citizen who sought refugee protection on the grounds of his ethnicity as an Assyrian, his adherence to the Christian religion and his political opinion as a member of the Bet Nahrin Party (the "Party").
[3] The Applicant is an Assyrian Christian lawyer who has been a member of the Party since 1995. The goal of the Party is to support Assyrians in Syria and the Syrian government opposes the Party.
[4] The Applicant was involved in litigation to determine the legality of a sale of land by his client to an Arab Muslim family headed by a man called Salman. In late 1996, the Court ruled in favour of the Applicant's client but Salman appealed and allegedly bribed the appeal judge who reversed the decision of the lower court. The Applicant appealed the decision to the Supreme Court in Damascus but engaged the services of another lawyer to avoid the enmity of the judges of the appeal court. In January 2000, the Supreme Court issued an order and ruling in favour of the Applicant's client.
[5] The Applicant said that this decision and his attempts to implement it led to threats against his life by Salman. The Applicant testified that in May 2000, a car that he recognized as belonging to the Salman family attempted to run him down.
[6] The Applicant also said that on May 15, 2000, a friend came to his home and told him that an arrest order had been issued against him, accusing him of being a member of the Party. He believed that the arrest order had been issued at the request of the judges whose order he had appealed.
[7] The Applicant fled to the United States where he stayed for approximately six months. When he was denied a renewal of his visitor's visa, he travelled to Canada and made a claim for refugee status.
[8] The Board determined the Applicant was not a Convention refugee because there was insufficient credible evidence to show that he had a well-founded fear of persecution in Syria for a Convention ground. While it accepted that the Applicant was an active member of the Party, it did not find credible his evidence that he left Syria because he became aware that an arrest order had been issued on account of his membership and activities in the Party. The Board made a number of negative credibility findings, including negative findings concerning the arrest order and the Applicant's motivation for seeking protection in Canada, in view of his repeated prior attempts to obtain a visitor's visa for entrance into Canada.
[9] Although the Applicant argues that the Board erred in making negative credibility findings against him, the record shows sufficient evidence upon which those negative findings could be made. In light of the applicable standard of review for credibility findings made by the Board, that is, patent unreasonableness as discussed in Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), there is no basis for interference with these findings. However, that is not the end of the matter.
[10] The Board found that the Applicant is an Assyrian and a member of the Party. The documentary evidence before the Board shows that such anti-government political activities are illegal in Syria and those engaged in such activities are ill-treated, if apprehended by the government. The documentary evidence also shows that returnees face potential human rights abuses in Syria.
[11] While the Board did not find that there was evidence that the Syrian authorities were aware of the Applicant's refugee claim, it did not assess the issue of risk to the Applicant if returned to Syria, based on his political affiliation and his status as a returnee. The question remains whether the authorities will target the Applicant upon his return to Syria. This issue is independent of the Board's findings about the lack of credible evidence to support a refugee claim. In Baranyi v. Canada (Minister of Citizenship and Immigration) (2001), 16 Imm. L.R. (3d) 142 Justice O'Keefe said as follows at 147:
Even in situations where the CRDD finds an applicant not to be credible it still must consider the documentary evidence. This Court in Seevaratnam v. Canada (Minister of Citizenship and Immigration)(1999), 167 F.T.R. 130 (FCTD) stated at page 132:
Clearly, where the only evidence linking the claimant to the persecution emanates from his or her testimony, rejecting the testimony means there is no longer a link to the persecution. It becomes impossible to establish a link between the person's claim and the documentary evidence.
This is obviously different from the present case, where there was evidence, including her NIC, emanating from sources other than the applicant's testimony, which can link her claim to the ongoing persecution of young Tamil women in Sri Lanka.
The documentary evidence may have established a well-founded fear of persecution on the applicant's behalf or it may not have. The CRDD should have assessed this evidence to determine whether or not it established a well-founded fear of persecution. I have reviewed the decision of the CRDD and I can find no reference to the documentary evidence to the effect that other Roma citizens of Hungary are or were being persecuted. In my opinion, the CRDD committed a reviewable error of law by failing to consider this evidence, whether you apply a standard of review of reasonableness simpliciter or patent unreasonableness.
[12] In the present case, the Board did not deal with the documentary evidence before it concerning the situation of Assyrians, political opponents or returnees to Syria. In my opinion, based on Baranyi, supra, the Board made a reviewable error in failing to assess whether the documentary evidence shows that the Applicant had a well-founded fear of persecution based on his political opinion and status as a returnee.
[13] Accordingly, the application for judicial review is allowed and the matter remitted to a differently constituted Board for redetermination. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter remitted to a differently constituted Board for redetermination. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-779-03
STYLE OF CAUSE: NABIL TOUMA v. MCI
DATE OF HEARING: August 12, 2003
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER
AND ORDER BY: Heneghan J.
DATED: November 3, 2003
APPEARANCES BY: Mr. Michael Korman
For the Applicant
Ms. Marina Stefanovic
For the Respondent
SOLICITORS OF RECORD: Mr. Michael Korman
Otis & Korman
290 Gerrard St. E.
Toronto, Ont.
M5A 2G4
For the Applicant
Ms. Marina Stefanovic
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent