Ottawa, Ontario, January 4, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Majid Al-Kayssi and his wife, Raja Yass, are citizens of Iraq who claim status as Convention refugees and persons in need of protection. They bring this application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") that they are neither Convention refugees nor persons in need of protection. For the reasons that follow, I have determined that the application for judicial review should be dismissed.
BACKGROUND FACTS
[2] Mr. Al-Kayssi is now 76 years of age and his wife is 64 years of age. According to Mr. Al-Kayssi's Personal Information Form ("PIF") he was a chemist, university lecturer and university dean in Iraq. He retired in 1986 and began to write chemistry books. He and his wife have four adult children. All of the children left Iraq during the years from 1990 to 1997, some leaving illegally. Mr. Al-Kayssi claims that after his second child left Iraq, government representatives came to his home and asked that he fill out forms reporting on the location of himself, his wife and each of his children. Later, shortly after his last child, a daughter, left Iraq, two men, who Mr. Al-Kayssi believed belonged to the Iraqi security services, came to his home and questioned Mr. Al-Kayssi about the whereabouts of the daughter, her husband and children. The men had the original copies of their identity documents and photographs of the daughter and her family. The men demanded a bribe in exchange for not prosecuting Mr. Al-Kayssi for his children's illegal departure from Iraq. The bribe was paid, but later requests for payment were not paid because Mr. Al-Kayssi said he had no more money.
[3] After this, Mr. Al-Kayssi says that he and his wife were questioned at Ba'ath Party headquarters, were questioned four or five times at their home, twice had their telephone service cut off for significant periods (until a bribe was paid), frequently had the electricity cut off from their home for two or three days at a time, and were denied food rations. During the same period, Mr. Al-Kayssi and his wife travelled to Jordan for four months to visit two of their children who had settled there. Afterwards, Mr. Al-Kayssi and his wife returned to Iraq. Ultimately, they left Iraq permanently in April 2002.
[4] Mr. Al-Kayssi claimed in his PIF that if he and his wife had remained in Iraq the questioning would have continued and would ultimately have led to the imprisonment of Mr. Al-Kayssi or his wife.
[5] After Mr. Al-Kayssi and his wife signed their PIFs, Iraq became involved in a military conflict with the United States and other countries, and Saddam Hussein and his regime were deposed. At the start of their refugee claim, counsel for Mr. Al-Kayssi and his wife advised the Board that their refugee claim was no longer based upon the incidents set out in their PIFs. Rather, their claim was based upon Mr. Al-Kayssi's perceived association with the previous regime, a fear of retribution from disgruntled students, Mr. Al-Kayssi's profile as a well-known academic and intellectual, and a fear that by virtue of their time in Canada they would be perceived as supporting the coalition forces.
THE DECISION OF THE BOARD
[6] The Board made the following findings.
[7] First, the Board found that the allegations set out in Mr. Al-Kayssi's PIF were incredible and fabricated. The Board found it to be implausible that Mr. Al-Kayssi was ever harassed as he alleged. This finding was based upon Mr. Al-Kayssi's work for the government, including the position he held as an adviser in the Ministry of Education, his cooperation with the Ba'ath Party, the fact that the revolutionary council had appointed Mr. Al-Kayssi to his position as university dean, and the fact that he had continued to reside in the university quarter in the best part of Baghdad.
[8] Second, with respect to Mr. Al-Kayssi's stated fear of students who would want retribution because he was a tough dean who was anti-student union, the Board drew an adverse inference from the fact that Mr. Al-Kayssi's PIF failed to mention these facts.
[9] Third, although Mr. Al-Kayssi said he feared being killed because professors and intellectuals were being killed, the Board concluded that because Mr. Al-Kayssi retired in 1986 he would not be perceived to be a threat to the insurgency or otherwise be targeted on that basis.
[10] Finally, the Board found no credible or trustworthy evidence that Canada is considered to be an enemy by those religious groups or factions who oppose the presence of coalition troops. There was no credible or trustworthy evidence to show that Mr. Al-Kayssi had engaged in any activities in Canada that would make him of interest to any group in Iraq.
THE ISSUES
[11] Mr. Al-Kayssi and his wife raise two issues on this application.
[12] First, they say that the Board's implied conclusion that Mr. Al-Kayssi would no longer be recognized as an academic or a Ba'ath Party supporter was inconsistent with its finding of fact in connection with the original basis of the claim that Mr. Al-Kayssi had worked for the government, been a university professor and dean and had cooperated with the Ba'ath Party.
[13] Second, they say that the Board misstated, misconstrued or ignored the totality of the evidence as to the likelihood of persecution because of Mr. Al-Kayssi's position as an academic and possible perceived Ba'ath Party supporter.
CONSIDERATION OF THE ISSUES
[14] I am not persuaded that the Board made inconsistent findings with respect to whether Mr. Al-Kayssi would today be suspected of being a professor and Ba'ath Party supporter. The first finding related to Mr. Al-Kayssi's occupation from the 1950s to the 1980s and the period in the 1990s when his children left Iraq. The second finding relates to his status today, almost 20 years after his retirement and three years since he left Iraq. Because it has been almost 20 years since Mr. Al-Kayssi was a professor and party supporter, the Board found that people today would not necessarily recognize him as such. This was not a patently unreasonable finding of fact that warrants the Court's interference.
[15] As to the second ground of review, the documentary evidence establishes the current targeting of academics, scientists and other intellectuals in Iraq. It is silent as to whether persons who had been retired from academia for 20 years are in similar danger. The documentary evidence does discuss who the suspected attackers may be. Some people accuse Saddam loyalists said to be eliminating people who might leak secret information about the regime (particularly information with respect to illegal weapons), others accuse religious fundamentalists said to object to the secular stance of intellectuals, still others accuse Saddam opponents said to be seeking revenge against intellectuals who had joined the Ba'ath Party. Mr. Al-Kayssi testified that he had never joined the Ba'ath Party and he gave no evidence that he possessed secret information about the regime, or that he supported a more secular Iraq. Given that, and the fact that the documentary evidence does not describe retired academics and supporters as being targeted, I am unable to conclude that the Board's finding that there was not a reasonable chance that Mr. Al-Kayssi would now be targeted was patently unreasonable.
[16] It follows that the application for judicial review should be dismissed.
[17] Counsel posed no question for certification and I agree that no question arises on this record.
ORDER
[18] THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9532-04
STYLE OF CAUSE:
MAJID AL-KAYSSI and RAJA YASS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 27, 2005
REASONS FOR ORDER AND ORDER: DAWSON J.
APPEARANCES:
Mr. Robert Young FOR APPLICANTS
Mr. Stephen Jarvis FOR RESPONDENT
SOLICITORS OF RECORD:
Sullivan, Festeryga, Lawlor and Arrell
Barristers & Solicitors
Hamilton, Ontario FOR APPLICANTS
John H. Sims, Q.C.