Date: 20050224
Docket: IMM-2447-04
OTTAWA, Ontario, February 24, 2005
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
MOHAMED WEHBE SLEIMAN
Applicant
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 Refugee Protection Division of the Immigration and Refugee Board (the Board) dated March 1, 2004 in which the applicant was found not to be a Convention refugee or person in need of protection, and in any event, was excluded under Article 1F(a) of the Convention.
FACTS
[2] The applicant, a 26 year-old citizen of Lebanon at the time of the hearing before the Board, fears persecution and torture by the Lebanese army and Hezbollah, a terrorist organization in Lebanon and elsewhere.
[3] In 1996 the applicant owned and operated a central telephone communications service in Beirut specializing in arranging phone lines. 1n 1996 his uncle asked the applicant to tap about 15 telephone lines of people suspected of working with Hezbollah. These telephone lines were tapped on behalf of Israel. His uncle promised him new equipment in exchange for tapping the phone lines. The applicant's cousin (the uncle's son) assisted the applicant. The applicant tapped the phone lines for over two years, and provided the tapes directly to Israeli officials on occasion. In March 1999, members of Hezbollah discovered the applicant's activities and murdered his cousin. Hezbollah burned down the applicant's business. Fearing for their safety, the applicant and his uncle escaped to an area in southern Lebanon called the "Security Zone", controlled by the South Lebanese Army (SLA) and the Israelis. The applicant claims that from July 1999 until April 2000, he worked as a guard for the SLA. When Israel announced that it would withdraw from the Security Zone, the applicant became fearful that he would not be safe in Lebanon. Accordingly, he went to Israel on April 29, 2000, and then to the United States.
[4] The applicant claimed political asylum in the United States, but was ordered deported when he failed to appear for his immigration hearing. After September 11, 2001 the applicant believed he was no longer safe in the United States. He travelled to Canada on October 10, 2001 and made an immediate claim for refugee protection.
THE DECISION
[5] The Board rejected the applicant's claim for protection on two bases. First, the Board found that the applicant did not have a well-founded fear of persecution for a Convention ground in Lebanon or that he was a person in need of protection. The Board found the applicant not credible. The Board also found that if the applicant were returned to Lebanon, and found to be a collaborator of Israel, he would be prosecuted as a former SLA member and receive a short prison term. He would not be persecuted. Second, the Board found that the applicant is excluded from being considered a Convention refugee or a person in need of protection pursuant to Article 1F(a) of the United Nations Convention Relating to the Status of Refugees. The Board found as a fact that the SLA had committed crimes against humanity and that the applicant was an accomplice so that he was excluded under Article 1F(a).
ISSUES
[6] This case raises two mutually exclusive issues:
i. did the Board err in concluding that the applicant did not have a well-founded fear of persecution in Lebanon? This issued turns on two sub-issues:
(a) credibility; and
(b) prosecution vs. persecution
ii. did the Board err in concluding that the applicant fell within the exclusion under Article 1F(a) of the Refugee Convention?
For the applicant to succeed on this application, the applicant must demonstrate that the Board erred on both issues. On the other hand, if the Court finds that the Board did not err on either of the two issues, then this application must be dismissed.
RELEVANT LEGISLATION
[7] The relevant legislation is as follows:
Immigration and Refugee Protection Act, S.C. 2001, c. 27
Section 98
| A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention Refugee or person in need of protection. |
|
98. La personne visée aux sections E ou F de l'article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. |
|
|
|
|
United Nations Convention Relating to the Status of Refugees, Article 1F(a)
| F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.
|
|
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura les raisons sérieuses de penser :
a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes. |
|
|
|
|
ANALYSIS
[8] As discussed above, the applicant must succeed on both issues for this application to be allowed.
Issue No. 1
Did the Board err in concluding that the applicant did not have a well-founded fear of persecution in Lebanon?
(a) Credibility
[9] The Board considered whether, absent the exclusion, the applicant had established a well-founded fear of persecution at the hands of the Lebanese army or members of Hezbollah. It found that he did not have a well-founded fear because his testimony was not credible and because the documentary evidence indicated that he would be subject to prosecution, not persecution. With respect to credibility, the Board found implausible the applicant's explanation that his personal documentation had been destroyed by two men he had been advised to meet. Since the applicant had assisted the government of Israel, the Board expected that Israeli officials would not send the applicant to the United States without the necessary documentation. Moreover, the Board found the death certificate of the applicant's cousin, as well as a letter allegedly written by the Mayor confirming the cousin's death, to be fabricated. It did not believe that the applicant or his family would have been permitted to obtain such documents from Lebanese authorities if his cousin had been murdered for collaborating with Israel.
[10] The Board made the following additional credibility findings in its Decision:
at page 5:
... I find the claimant's alleged lack of knowledge about the use to which the information sought by the Israelis not truthful and not credible.
at page 6:
... I find that during the claimant's testimony about the AL Khiam prison and whether he knew about it, the claimant was rather vague and imprecise.
at page 7:
... Given that the claimant was a guard, I find it not plausible that he would have not known whether there were people living on the farm and who they were. The claimant stated that part of his job was to guard and protect the area and monitor the flow of traffic in and out of the farm. Given that responsibility, I find it not plausible that he would not have known what happened on the farm. I find the claimant vague, evasive, imprecise and reluctant to answer questions.
further at page 7:
I find that there is a serious contradiction with respect to the material elements of the claimant's claim ... I draw an adverse inference as to the claimant's credibility as a witness from this contradiction and his failure to provide a reasonable explanation.
at page 8:
... I am convinced that the claimant had knowledge of what happened at the Al Khiam prison and the human rights abuses, which took place in the area. I find there was complicity and that the claimant was an accomplice in what took place ... I find that the claimant was an accomplice in the atrocities that took place in Al Khiam ...
at page 13:
I find the claimant's explanation about how the death certificate and the mayor's letters were obtained not truthful; the claimant's allegations are not credible.
and at page 14:
I find the allegations about how the claimant left Israel for the U.S. not credible and that the claimant is not credible.
[11] In reviewing these findings of credibility, I have concluded that the Board provided adequate reasons, and that these findings of credibility are not patently unreasonable. Counsel for the applicant conceded that there were blatant contradictions in the applicant's testimony, and the Board made no clear erroneous findings of fact. The Court is not in a position to reassess credibility, only to judicially review credibility findings. While the applicant's counsel ably brought to the Court's attention excerpts of the evidence where the applicant was clear, that does not change the fact that the Board found this evidence not credible. The Board has made findings of fact after deciding which evidence is truthful, and this Court will not disturb these findings because they have not been shown to be erroneous.
(b) Former SLA members are prosecuted for collaborating with the Israelis and ordinary militiamen receive prison sentences of approximately twelve to eighteen months
[12] The Board considered what would happen to the applicant if returned to Lebanon as a former ordinary, low-level SLA member. The documentary evidence canvassed by the Board indicated that sentences handed down to former SLA members depended on their rank and other circumstances, but that generally ordinary militiamen received prison sentences of approximately 12 to 18 months. The same report stated that sentences had been more lenient than expected and more lenient than the prosecution or Hezbollah had been demanding. Based on this information, the Board concluded that the applicant would be treated in accordance with the law of general application if returned to Lebanon. Consequently, he faced prosecution, not persecution.
[13] The Board did not consider whether the applicant might be prosecuted for having tapped the telephone lines of Hezbollah members in Beirut for two years. However, the Board did reject the applicant's credibility about how he was able to obtain his cousin's death certificate, which is related to whether his cousin was really murdered for collaborating with Israel by tapping the telephone lines. Accordingly, while the Board did not expressly deal with whether the applicant would be persecuted for tapping the telephone lines, it is implicit that the Board decided the applicant would not be persecuted or tortured for this reason.
[14] For these reasons, I conclude that the Board did not err with respect to Issue No.1. While it is not necessary to consider Issue No.2 in view of my finding with respect to Issue No.1, I will do so in the circumstances of this case.
Issue No. 2
Did the Board err in concluding that the applicant fell within the exclusion under Article 1F(a) of the Refugee Convention?
[15] Until May 2000, Israel controlled an area of South Lebanon which was proclaimed by the Israelis as a "Security Zone". This control was exerted through direct military action by the Israeli Army and by supporting its surrogate, the South Lebanon Army (SLA). Prior to the Israeli withdrawal from the Security Zone, the Hezbollah, a Lebanese Shi'a group and some Palestinian guerillas were constantly attacking Israeli and SLA troops in the Security Zone. In May 2000, after 22 years of occupation, the Israeli Defence Forces (IDF) troops withdrew and the SLA disbanded. It was at this point that the applicant fled Southern Lebanon for Israel, and then to the United States.
[16] At the refugee hearing before the Board, the Minister submitted that the applicant's membership in the SLA meant that he was an accomplice to crimes against humanity and therefore excluded under Article 1F(a).
[17] The Federal Court of Appeal in Harb v. Canada (Minister of Citizenship and Immigration), [2003] FCA 39 summarized the jurisprudence with respect to applying Article 1F(a) of the Convention. At paragraph 11 Justice Décary held:
¶ 11 ... It is not the nature of the crimes with which the appellant was charged that led to his exclusion, but that of the crimes alleged against the organizations with which he was supposed to be associated. Once those organizations have committed crimes against humanity and the appellant meets the requirements for membership in the group, knowledge, participation or complicity imposed by precedent ... the exclusion applies even if the specific acts committed by the appellant himself are not crimes against humanity as such. In short, if the organization persecutes the civilian population the fact that the appellant himself persecuted only the military population does not mean that he will escape the exclusion, if he is an accomplice by association as well.
In this case, the Board held that the SLA had committed crimes against humanity, that the applicant was a member of the SLA and had knowledge of the SLA activities, that the applicant supported the activities of the SLA as a guard, and that while the applicant did not directly commit any of the crimes against humanity, he was an accomplice by association.
[18] Moreover, the Federal Court of Appeal in Harb, at paragraph 27 held that the denial by the applicant of any involvement is not sufficient to negate the presence of a common purpose. The plaintiff actions as a member of the SLA in the Security Zone to borrow the words of the Federal Court of Appeal in Harb "... can be more revealing than his testimony and circumstances may be such that it can be inferred that a person shares the objectives of those with whom he is collaborating..."
[19] The Board cited several examples of the applicant's evasive, vague and imprecise evidence and concluded that the applicant:
i. had knowledge of what happened at the Al Khaim prison and the human rights abuses which took place in the area; and
ii. was complicit and an accomplice. The Board held at pages 8 and 9 of its decision:
"I find that there was complicity and that the claimant was an accomplice in what took place at Al Khaim ..." when the applicant was working as a guard. For that reason the applicant was found to be an accomplice in the atrocities that took place in Al Khaim.
Based on these findings of fact by the Board and the jurisprudence (such as El-Kachi v. Canada (Minister of Citizenship and Immigration), [2002] FCT 403 per Blanchard J. at paragraphs 17 and 18), the applicant's act of support as a guard, with knowledge of the activities being committed by the SLA, means that he is an accomplice and that "a shared common purpose" between the applicant and the SLA will be considered to exist. Accordingly, the Board correctly found that the applicant was excluded from Convention protection pursuant to Article 1F(a).
[20] The Board's findings that the applicant had knowledge of the crimes against humanity which took place, that the applicant was complicit and an accomplice even though he was only working as a guard, are findings of fact. The Court will not set aside such findings of fact unless they are shown to be unreasonable on the evidence, which the applicant has not done. Accordingly, the Court is of the view that the Board did not err in concluding that the applicant fell within the exclusion under Article 1F(a) of the Convention.
CONCLUSION
[21] The Court finds that the Board reasonably concluded that:
1. the applicant was not credible;
2. the applicant, if returned to Lebanon would be prosecuted, not persecuted; and
3. the applicant is excluded from the Convention under Article 1F(a).
For these reasons, this application for judicial review will be dismissed.
[22] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2447-04
STYLE OF CAUSE: MOHAMED WEHBE SLEIMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 17, 2005
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES BY:
Mr. Randal Montgomery
For the Applicant
Ms. Ann Margaret Oberst
For the Respondent
SOLICITORS OF RECORD:
Randal Montgomery
Barrister & Solicitor
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20050224
Docket: IMM-2447-04
BETWEEN:
MOHAMED WEHBE SLEIMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER