Date: 19980202
Docket: IMM-1432-97
BETWEEN:
LEBNAN HAMMOUD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CAMPBELL, J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD"), dated March 21, 1997, wherein Lebnan Hammoud (the "Applicant") was found not to be a Convention refugee.
[2] The application for judicial review is based on the following grounds, as set out in the Applicant's Application for Leave and Judicial Review:
| 1. The CRDD erred in law in reaching its decision in this case by failing to consider the whole of the evidence before it; |
| 2. The CRDD based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it; |
| 3. The CRDD erred in law in finding that the Applicant did not have good grounds in fearing persecution in Lebanon. |
| The Applicant seeks an Order setting aside the decision of the CRDD and a new Hearing. |
A. The facts
[3] The Applicant is a citizen of Lebanon. The Applicant became an active member of the Communist Party (LCP) in 1982 while living in his village of Kfarhamam, which was in the Israeli occupied zone.
[4] In 1986, the Applicant fled his village and joined the resistance known as the Lebanese Nationalist Movement/Resistance. The Applicant was a member of the propaganda unit and distributed pamphlets against the Israelis and urged citizens to resist the Israeli invasion.
[5] The Lebanese Nationalist Movement/Resistance and the Hezbollah struck an alliance. In March 1986, both parties lost key party members due to conflicts between them.
[6] In July, 1986, the Applicant was detained for a week by the Hezbollah and his life was threatened. To save himself, the Applicant begged to join forces with the Hezbollah. A settlement was reached where he was exchanged in a "prisoner swap".
[7] In October 1986, the Applicant moved to Beirut to attend the Lebanese University, Faculty of Science, for the next two years. There were conflicts between the Hezbollah and the LCP at the university. The Applicant used his position as a student leader to further the movement against the Hezbollah party and the Israeli occupation of Lebanon. During this time he trained new members in Communist ideology, as a noted writer with the university's journal, produced articles against the Hezbollah ideology, and campaigned against Moslem extremists.
[8] In February 1987, the Hezbollah tried to kill the Applicant with gunfire when he was identified at a checkpoint. Various threats and conflict situations continued at the university. The LCP helped the Applicant obtain a scholarship to study at a university in Moscow commencing in September 1989.
[9] In October 1988, the Applicant completed university in Beirut and continued his alliance and work with the LCP. During this time he moved constantly until he started university in Moscow in September 1989.
[10] After he left university, the Applicant learned that H.H., a professor who was considered a leader of the LCP, had been killed. The Applicant states that students in different schools were kidnapped. In 1987, Dr. Sel T. was kidnapped and his body was later found, and Dr. H. was killed at home in front of his wife.
[11] In or about January 1990, the Applicant went to Lebanon for 20 days because his father was very ill. His father took ill after being detained by the Israelis and the South Lebanese Army (SLA) for eight months in 1989. The Applicant believed that his father was detained because of his activities with the LCP. He stayed with his sister in Beirut and his mother came to see him there. The Applicant testified that he has been unable to return to his village since 1986.
[12] In February 1990, the Applicant visited another sister in the southern part of Beirut. Shortly after he was noticed by a former student while walking from the bus, the Hezbollah attempted to kidnap the Applicant but he escaped after shots were fired at him. He hid in a friend's home and did not report the incident to the police because he knew that it would be fruitless to do so. In that particular region, there were no police stations and there were no government representatives present. Rather, the Hezbollah was the armed force in control.
[13] The Applicant returned to Moscow and continued his political activity for two more years. In 1993, his activity ceased as the Communist regime was falling and no more meetings were taking place.
[14] In 1994, the Applicant's brother, M., while living in Kfarhamam, was "taken" by the Israelis in the same manner as they had taken his father. M. now lives in Sidon but still fears the Hezbollah. M. is not a member of the LCP but the Applicant fears that the Hezbollah suspect M. of co-operating with the Israelis.
[15] In August 1995, the Applicant returned to Lebanon because his student visa had expired and his studies were complete. He returned to Lebanon because he wanted to visit his father and was required to pass equivalency exams there. He visited his brother in Sidon and his sister in Hayamadi, visited friends, and started looking for a job in Sidon and Beirut.
[16 ] While he was at his sister's house, four men came to the door and demanded to see him. When his sister denied that the Applicant was there, the men forcibly entered the house and beat him. He was blindfolded and taken away to an unknown place. There, he was tortured twice a day, accused of being an infidel who had attacked Islam by being a Communist, and asked for names of other Communist supporters. Fearful for his life, the Applicant co-operated and was let go.
[17] The Applicant hid in a friend's home for 11-12 days in the western suburbs of Beirut. The Applicant arranged to continue his studies in Moscow and obtained a student visa. His brother-in-law bribed a security guard at the airport so he would be able to fly to Moscow.
[18] While in Moscow, the Applicant obtained a visitor's visa which allowed him to come to Canada in November 1996 to visit his siblings. On January 20, 1996 (2 months after his arrival) the Applicant made a refugee claim. The delay was due to the fact that he did not know the process.
[19] The Applicant fears that if he returns to Kfarhamam or the Security Zone, the SLA or the Israelis will take him by force and sentence him to life imprisonment. The Applicant also fears the Hezbollah outside the Security Zone because of his involvement with the LCP.
B. The decision under review
[20] The CRDD accepted as credible that the Applicant was a member of the LCP, he attended the Lebanese University for two years, and he attended Moscow University from August 1989 -January 1995, he is not able to return to Kfarhamam in South Lebanon because he is sought by the Israeli Police Forces and the SLA, and that his father and brother were detained because of the Applicant's political views.
[21] However, the CRDD did not find credible that the Hezbollah persecuted the Applicant upon his return from Moscow University in 1990 and 1995 and that he had to come to Canada to find asylum as a result of that persecution. The CRDD also found that the Applicant's fear of the Hezbollah elsewhere in Lebanon is not credible because the documentary evidence indicates that there exists a more peaceful situation between the Hezbollah and the LCP. In this respect, the CRDD concluded that:
| In assessing the evidence, the panel finds the documentary evidence is preferred to that of the claimant's testimony regarding country conditions, since the former is more detailed than the evidence which the claimant was able to provide; is more objective in nature; and originated from various independent sources, which also have no interest in the outcome of these proceedings. (page 9) |
[22] The CRDD went on to state that even if the Applicant's story was true, they found that the Lebanese government would be able to protect him from the Hezbollah based on what was stated in the documentary evidence.
| [23] In concluding that the Applicant did not have an objective basis for a well-founded fear of persecution at the hands of the Hezbollah, speaking about the Applicant, the CRDD stated that: |
| He agrees that he is not a person who falls within the listed categories of risk from the Hezbollah. He may disagree that the Hezbollah curtail freedom of speech, but in the present situation in Lebanon, the panel finds that there are avenues open to him to lodge complaints if this should happen to him. (page 10) |
| [24] With respect to a subjective basis for fear, the CRDD concluded that: |
| ...the claimant's action in returning to the country in which he alleged he had a well-founded fear of persecution is inconsistent with a fear of persecution. |
| ... |
| ...the panel finds that his fear is not well-founded in light of the documentation. He is not at risk from the Hezbollah. Even though he has testified that he would continue his work with the LCP, the panel finds that in light of the present situation of the LCP, the claimant would not come to the attention of the Hezbollah by doing so. (page 11) |
C. The Applicant's position
[25] The Applicant argues that it was an error to reject the uncontradicted evidence of the Applicant regarding actions then against him by the Hezbollah. The Applicant also argues that the CRDD accepted important evidence in the Relevant Evidence Section in their Reasons for Decision as credible, however they chose to disregard it and other important evidence in coming to the conclusion that the Applicant did not have an objective fear of prosecution and that there was no "serious possibility" of persecution if he were to return to Lebanon. The Applicant asserts that this amounts to an error of law.
D. The Respondent's position
[26] The Respondent argues that the CRDD is entitled to prefer the documentary evidence over the evidence given by the Applicant if it finds it to be more reliable. Also, the Respondent submits that the CRDD considered all of the evidence before it and decided to give more weight to the documentary evidence on the basis that it was more detailed, more objective in nature, and that it originated from various independent sources.
[27] The Respondent argues that the conclusions and inferences drawn by the CRDD were reasonably open it and, as such, should not be overturned.
[28] With respect to the Applicant's argument that the CRDD made an erroneous finding of fact, the Respondent argues that the documentary evidence before the CRDD supports its conclusion that the Applicant does not have a well founded fear of persecution elsewhere in Lebanon.
E. The issues
[29] The issues in the present case are as follows:
| 1. Did the CRDD ignore the whole of the evidence before it? |
| 2. Did the CRDD base its decision upon erroneous findings of fact that it made in a perverse or capricious manner without regard to the evidence before it? |
F. Analysis
[30] I agree with the Respondent's assertion that the CRDD in fact weighed the complainant's evidence. The CRDD's characterization of this process as one of credibility finding is somewhat misleading; however, it is apparent when the whole of the decision is considered that the CRDD chose, after considering the whole of the documentary evidence, not to put weight on the Applicant's testimony.
[31] I agree with the arguments of the Respondent that the CRDD is entitled to enter into this form of evaluation and to reach the conclusion that it did.
[32] While the CRDD may not have cited all the documentary evidence upon which it relied, I am satisfied that the careful and detailed analysis which appears in the decision is based on the whole of the evidence presented. I can find no erroneous findings of fact.
[33] Accordingly I find no reviewable error to exist in this case and, therefore, this application is dismissed.
Judge