Digests

Sawan v. Canada (Minister of Citizenship and Immigration)

IMM-2988-02

2003 FCT 734, Russell J.

12/6/03

19 pp.

Judicial review of IRB decision applicant, family not Convention refugees--Applicants, citizens of Lebanon, alleging well-founded fear of persecution at hands of Lebanese, Syrian authorities, as well as from members of Hizbollah, by reason of imputed political opinion, membership in particular social group, namely family-- Principal applicant's husband, father of three other applicant daughters, owned trucking business in southern Lebanon, performed business transactions with Israelis, conducted cross-border transactions into Israel--Hizbollah members suspected applicant's husband of being spy for Israelis, threatened to kill him and family--Husband also allegedly beaten three times by local Lebanese--IRB found principal applicant had testified in vague, inconsistent manner, unable to answer many questions--IRB's ultimate conclusion, however, not based on credibility concerns--IRB found incidents experienced by husband not "serious, repetitive, persistent to cumulatively amount to persecution", did not form basis for well-founded fear of persecution by reason of political opinion--By extension, IRB found applicants, on balance of probabilities, would not be at risk of persecution by reasons of imputed political opinion, or by reason of their association as close family members--IRB also found female applicants' fear of persecution based on risk would face as women, if returned to Lebanon, not well-founded--Issues whether IRB based decision on erroneous finding of fact or erred in law--Application allowed--IRB did not provide any reasoning as to why it did not accept applicant's brother's testimony (on issue of what had heard about husband's transport of goods into Israel) as providing sufficient evidence of risk of persecution--Not clear whether IRB did not believe brother's evidence or accepted evidence but felt it did not carry sufficient weight to convince panel of risk of persecution--IRB did not fairly apply principle set out in Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302 (C.A.) (presumption that sworn evidence true can be rebutted if valid reasons for doubting truthfulness) to factual context of case--Secondly, IRB came to conclusion regarding treatment, penalties husband, family would face, stating they "do not appear disproportionate to objective of law"--IRB made comparison, without fully analyzing "objective of law"--That determination critical for IRB's final conclusion--Finding indicating some sort of comparison of proportionality of objective of law with process, penalties facing individuals charged with "entering Israel and doing business with the enemy" should have been part of IRB's analysis--Written reasons of IRB must be sufficiently clear, precise, intelligible so that claimant can understand why claim has failed and decide whether to seek leave to appeal: Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (C.A.) (QL)--IRB has also drawn illogical adverse inference against applicants from lack of problems for applicants in Saadanayel area up to June 2000--Also, reasonable apprehension IRB did not fully consider all evidence before it (especially, part of U.K. Country Assessment Report referring to unfairness in trial process for those suspected of collaborating with Israelis, human right abuses in detention)--Such evidence, contradictory to IRB's conclusions, should have been addressed in accordance with principles enunciated in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.).