Date: 20030725
Docket: IMM-4243-02
Citation: 2003 FC 917
BETWEEN:
BACHIR DAMEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant, a citizen of Lebanon, seeks judicial review of the determination by the Refugee Protection Division that he is neither a Convention refugee nor a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] In his personal information form, the applicant alleged a well-founded fear of persecution from the Syrian and the Lebanese security forces and from Hezbollah. His allegations include events during the 1980's and the 1990's. However, particularly in his oral submissions, the applicant focussed on four events which took place in 2000.
[3] On August 18, 2000, the applicant travelled to Canada from Lebanon for family reasons. He had previously obtained a visitor's visa for this trip.
[4] The first incident is said to have occurred some two days prior to his departure from Lebanon when he was served with papers summoning him to report to Yousef Smaha at Hezbollah "headquarters" in Karak, some thirty-five minutes by automobile from his residence in Lebanon. The applicant did not report as directed, for what he considered to be a routine interrogation, because he did not want to delay his trip to Canada. He did not take the request seriously and did not keep the papers he received.
[5] In his personal information form, the second incident is described in these terms: "One week later, the Hezbollah came to my home and asked my wife where I was. She told them that I had left for Canada." In his testimony, the applicant added that Hezbollah threatened his wife concerning their ability to force his return to Lebanon. Counsel for the applicant acknowledges that this incident occurred sooner than "one week later" in view of the dates suggested for the subsequent event.
[6] The third incident is the alleged shooting of the garage door of his residence. According to the personal information form, "[t]his happened around the 22nd of August 2000." In his testimony, the applicant indicated that this occurred during the night of August 24, 2000.
[7] On October 6, 2000, some six weeks after the alleged shooting, the applicant first stated his intention to make a refugee claim.
[8] The fourth incident, concerning a document issued by Hezbollah calling for the applicant's arrest, is described in the personal information form as follows:
On December 27th, a letter was received by another friend of mine in Lebanon. His name is Ali Hattoum and he has connections which allowed him to come into possession of this letter. The letter indicates that there is an arrest warrant for me which has been issued by the Hezbollah. This arrest warrant has been distributed to all of the Hezbollah and Security Forces bureaus in Lebanon. [Emphasis added]
[9] The Hezbollah document is dated August 25, 2000 and is addressed to "all members of Operation Cabinet and all members in charge". The substantive portion of the translated version of the document reads as follows: "We ask that all members of Hizbollah issue a warrant of arrest for the name of Bachir Rachid Damen who was born in Majdel Tarchich in 1966. His status number is 24. Mothers name Ikbal Araji. Reason for working for the enemy- Israel." [unedited]
[10] While both counsel referred to this document as "an arrest warrant", it can more accurately be described as an Hezbollah letter calling for the issuance of a warrant for the applicant's arrest.
[11] The applicant's principal challenge against the decision under review concerns the panel's assessment of this Hezbollah document. The applicant's submissions are twofold.
[12] First, the applicant argues that the panel was wrong to question his failure to file the original letter received by his friend Ali Hattoum. The facsimile copy of the letter sent by Mr. Hattoum to the applicant was the one filed with the Refugee Protection Division.
[13] Counsel for the applicant argued that it was irrational for the decision-maker to expect the applicant to obtain an original copy of the arrest warrant from Hezbollah, the agent of persecution. In my view, this argument has no merit. According to the applicant's personal information form, the document in question is a letter obtained by his friend Ali Hattoum. If the applicant had chosen to do so, it would have been a simple matter to obtain the original letter from Mr. Hattoum. Also, production of the original would have been consistent with Rule 36 of the Refugee Protection Division Rules, SOR/2002-228. In his closing submissions at the refugee hearing, the applicant's counsel himself acknowledged "... all we have is a fax of that document." In my opinion, the panel's interest in the original of the Hezbollah letter was neither unreasonable nor capricious.
[14] The applicant's second argument concerns the panel's finding that the Hezbollah document was only filed with the Refugee Protection Division on June 18, 2002, some twenty-two months after its date of issue. In fact, the document was filed on January 11, 2001, some two weeks after December 27, 2000, the date when it is said to have been received by Mr. Hattoum and when it appears to have been telecopied to the applicant.
[15] While I agree the panel erred, I cannot accept the applicant's argument that, absent this mistake, a different conclusion concerning the authenticity of the document and the merits of the refugee claim would have been reached.
[16] The panel relied on two more substantive reasons in finding that the Hezbollah document was fabricated:
I also prefer the foregoing documentary evidence, that members of Hizbollah do not conduct arrests of suspected Israeli collaborators, to the evidence of the claimant as it comes from independent sources with no interest in this refugee protection claim. In addition, I noted that the Police Clearance Certificate issued by the Lebanese Department of Internal Security Forces Judicial Police Headquarters in Beirut on September 23, 2000, referred to above, indicates that the claimant has never been charged with, or convicted of, any crime or offence in Lebanon. I find it implausible that, had Hizbollah called for his arrest by Lebanese security forces; the Judicial Police in Beirut would have not issued such a Police Clearance Certificate. [unedited]
While the Police Clearance Certificate refers only to the absence of convictions, the applicant described the document as one "... stating that I have no charges against me in Lebanon."
[17] The panel noted certain inconsistencies in the applicant's evidence concerning the alleged events in 2000. It also reviewed the documentary evidence concerning Hezbollah activities and targets in Lebanon. On the basis of this evidence, the panel member concluded that "... the claimant's profile is dissimilar from that of persons in Lebanon who would be at risk of being threatened or harassed by members of Hizbollah for being suspected Israeli collaborators or spies."
[18] Upon my review of the transcript of the refugee hearing and the relevant documentary evidence, I am satisfied that the panel's error concerning the filing date of the Hezbollah document is neither central nor material to its reasons for decision and its negative determination: Rohm & Haas Co. of Canada v. Canada (Anti Dumping Tribunal), [1978] F.C.J. No. 522 (QL) (C.A.), at paragraph 9; Owusu v. Canada (Minister of Employment and Immigration, [1988] F.C.J. No. 434 (QL) (C.A.); Miranda v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 437 (QL) (T.D.); and Stelco Inc. v. British Steel Canada Inc., [2000] 3 F.C. 282, at paragraph 22. The decision in Owusu Ansah v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 442 (QL) (C.A.), relied upon by the applicant, can easily be distinguished on the facts in this proceeding.
[19] The applicant has failed to establish any reviewable error in the decision of the Refugee Protection Division within the meaning of paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. In very brief submissions, both parties suggested the appropriate standard of review was patently unreasonable. For the reasons I have stated, the decision was neither clearly wrong nor patently unreasonable. Accordingly, the application for judicial review will be dismissed.
[20] In response to his request, the applicant will have seven days from the date of these reasons to suggest for certification a serious question of general importance. Counsel for the respondent may file her reply within seven days from the date of service of the applicant's submissions.
"Allan Lutfy"
C.J.
Ottawa, Ontario
July 25, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4243-02
STYLE OF CAUSE: Bachir Damen
Applicant
v.
The Minister of Citizenship and Immigration
Respondent
PLACE OF HEARING: EDMONTON
DATE OF HEARING: July 9, 2003
REASONS FOR : Lutfy C.J.
DATED: July 25, 2003
APPEARANCES:
Kevin E. Moore
FOR PLAINTIFF / APPLICANT
Kerry Franklin
FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Kevin E. Moore Law Office FOR PLAINTIFF/APPLICANT
Suite #300
10735-107 Avenue
Edmonton, AB
T5H 0W6
Minister of Citizenship and Immigration FOR DEFENDANT/
#211, 10199-101 Street RESPONDENT
Edmonton, AB
T5J 3Y4