Date: 20041025
Docket: IMM-938-04
Citation: 2004 FC 1480
Ottawa, Ontario, October 25, 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
ZAHER EL-KASSEM
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division (the panel) of the Immigration and Refugee Board (IRB) dated January 20, 2004, that the applicant is not a Convention refugee or a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act (the Act). The applicant requests that the panel's decision be set aside and that the Court make any other order that it deems appropriate.
ISSUE
[2] Did the panel err in law in making its decision or otherwise rely on erroneous findings of fact made in a perverse or capricious manner or without regard to the material before it when it assessed the applicant's refugee claim?
CONCLUSION
[3] For the reasons stated below, the panel made a material error by not adequately analyzing the evidence adduced. In fact, there was no analysis of the allegations of discrimination and persecution. Accordingly, it was not justified in determining that the applicant's claim was unfounded.
THE FACTS
[4] The applicant, Zaher El-Kassem (Mr. El-Kassem, or the "applicant"), was born in 1978 to Palestinian refugee parents in Lebanon where he lived all his life. In 1982, the family moved from a camp near Beirut to settle in the Naher Le Bared camp near Tripoli. In 1999, the family settled in Tripoli.
[5] The applicant completed his studies in 1999. While he was studying, the applicant always lived in the refugee camps. During this period, the applicant alleges that he was solicited and pressured by two different organizations to join the ranks of the militants. In order to get away from these groups, the applicant alleges that he wanted to finish his studies.
[6] After he obtained his engineering assistant diploma, he tried for two years to find work. Unfortunately, his search was fruitless. He attributes this lack of success to the discrimination and racism experienced by the Palestinians. The applicant submits that this amounts to persecution.
[7] Mr. El-Kassem decided to leave his country. He obtained a student visa from a university in Texas. He spent three months in the United States where he worked in order to repay the person who had paid part of his airfare. The applicant arrived in Canada on August 6, 2001, and claimed refugee status the same day.
[8] The applicant's refugee claim hearing took place on November 4, 2003.
THE IMPUGNED DECISION
[9] The panel dismissed Mr. El-Kassem's claim. It determined that the applicant was an "economic refugee" rather than a Convention refugee. After reviewing the evidence filed by the applicant, the panel agreed that the economic situation of Palestinian refugees in Lebanon was "appalling". However, it did not agree that this discrimination against the Palestinian population amounted to persecution. The applicant had the burden of establishing that he had been persecuted and that that persecution had occasioned a fear of returning to Lebanon. The applicant did not satisfy this burden. In coming to Canada, he appeared to be much more motivated by purely economic considerations than by refugee considerations.
[10] The panel was also disturbed by the fact that the applicant had not applied for refugee protection in the United States despite the fact that he stayed there for three months. According to the panel, this omission indicated that the applicant did not have a subjective fear, an essential element for obtaining Convention refugee status.
ARGUMENTS OF THE PARTIES
The applicant
[11] The applicant contends that the panel erred in fact and in law in determining that the discrimination that he experienced is a situation which affects the majority of the population and accordingly, that it does not amount to persecution.
[12] Given that the panel did not make any negative findings regarding Mr. El-Kassem's credibility or regarding the truthfulness of the facts alleged and because the panel did not point out any major contradiction between Mr. El-Kassem's testimony and his Personal Information Form (PIF), the applicant is of the opinion that the panel should not have dismissed his refugee claim.
[13] Further, the applicant points out that the documentary evidence clearly describes the situation of Palestinians in Lebanon. In the applicant's opinion, the panel should have assessed this documentary evidence not only in light of the applicant's fear of being recruited by a Palestinian faction, but also by taking into account that the applicant was the victim of systematic discrimination by the Lebanese authorities, inter alia not having access to the labour market. The applicant claims that did he did not only allege a state of affairs affecting the majority of the population, but that he was also personally targeted by this discrimination. The applicant contends that persecution may include facts and gestures preventing professionals from practising their profession on a permanent basis. (See He v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1243 (F.C.T.D.).
[14] Finally, the applicant adds that refugee claimants are not required to apply for protection in the first country they go to after they flee and that a claim can be founded even if it had not been made at the first available opportunity. The panel should have investigated and considered the circumstances behind the delay to determined if they were indicative of an absence of fear. The applicant says that the panel was wrong not to accept his explanation. He states that he was advised against making a refugee claim in the United States because of the processing times and the difficulty finding employment. Finally, he contends that the panel was wrong to have not even considered his student visa.
The respondent
[15] The respondent claims that the panel reasonably determined that the applicant did not have an objective fear of persecution. In this regard, he states that the documentary evidence establishes that Palestinian organizations like Intifada and Fathah do not engage in forcible recruitment in refugee camps. Contrary to the applicant's allegations, the respondent believes that the panel considered the applicant's representations to the effect that he was allegedly pressured by different factions within the camp, but that without more details there was no reason to believe that this amounted to persecution.
[16] The respondent submits that it was reasonable for the panel to find that the applicant lacked a subjective fear based on his declarations at the port of entry as well as on his conduct following his departure from Lebanon. For the panel, these actions established that he left his country for economic reasons and not because of persecution. Even at his interview at the port of entry, Mr. El-Kassem said that he only wanted to find suitable employment related to his field of study. Furthermore, the respondent contends that the applicant does not appear to fear the authorities, but rather that he is attempting to improve his economic future. According to Ward v. Canada, [1993] 2 S.C.R. 689, that is not a ground contemplated by the Act.
[17] Finally, the respondent claims that the panel did not err in determining that Mr. El-Kassem's behaviour was not compatible with a person having a reasonable fear of persecution, given that he lived in the United States for three months without claiming refugee status. The respondent points out that the case law states that a claimant must seek protection as soon as possible. If the claimant is unable to justify the delay, it is reasonable to determine that there is a lack of subjective fear of persecution.
ANALYSIS
[18] Even though the length of a decision is not indicative of its value, it is important for decision-makers to ensure that the essential elements supporting their findings are included and that the decision contains sufficient explanations for claimants to understand the reasons why their claim was dismissed. In this case, one reason underlying the decision was the panel's determination to the effect that the applicant did not suffer persecution; a key element for being considered a Convention refugee or a person in need of protection.
[19] The panel determined that the Palestinians' economic situation is "appalling". In arriving at this observation, it relied on the documentary evidence. However, the panel did not analyze this documentation in such a way as to distinguish it from persecution. The decision is silent on that subject. In Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398, the Federal Court of Appeal states at paragraph 3 that the panel, in a particular factual context, has the obligation to make the appropriate determinations ". . . in a particular factual context by proceeding with a careful analysis of the evidence . . .". I do not believe that the legal analysis (discrimination - persecution) was carried out in accordance with these requirements despite the fact that there was ample documentary evidence to do so. In my opinion, that was a significant error vitiating the decision because it is impossible to understand the reasons for the determination. The understanding of the determinations is essential. The absence of understanding is fatal.
[20] With regard to the two other arguments (whether there was forced recruitment as well as the fact that there was no claim made in the United States during his stay), they must follow the course of the file. However, I note the admission regarding forced recruitment (see applicant's memorandum at paragraph 3.11).
[21] For the reasons stated above, the judicial review is allowed and the panel that shall have the task of reexamining this matter shall in doing so disregard the determinations in this decision.
[22] Counsel were invited to submit questions for certification but they declined the offer.
ORDER
THE COURT ORDERS THAT:
- This application for judicial review is allowed, the decision is set aside and the matter is referred for reexamination as a whole by a new panel.
- No question shall be certified.
"Simon Noël"
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-938-04
STYLE OF CAUSE: ZAHER EL-KASSEM
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 18, 2004
REASONS BY: The Honourable Justice Simon Noël
DATE OF REASONS: October 25, 2004
APPEARANCES: JACQUES BEAUCHEMIN
FOR THE APPLICANT
DANIEL LATULIPPE
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Beauchemin, Paquin, Jobin, Brisson & Philpot
MONTRÉAL, QUEBEC
FOR THE APPLICANT
MORRIS ROSENBERG
MONTRÉAL, QUEBEC
FOR THE RESPONDENT