El Khatib v. Canada ( Minister of Citizenship and Immigration )
IMM-5182-93
McKeown J.
27/9/94
5 pp.
Application for judicial review of CRDD decision applicant not Convention refugee -- Applicant stateless person whose former habitual residences Lebanon, Kuwait -- Board holding protection available to applicant -- Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 holding linchpin of meaning of "well-founded" fear question of whether state protection available distinguished as there applicant citizen of state unable to provide protection -- Under Immigration Act, s. 2(1)(a)(ii) stateless person not expected to avail himself of state protection when no duty on state to provide such protection -- Board looking at protection provided by Lebanon to Palestinians, deciding discrimination, but no persecution -- Erred in stating Lebanon applicant's only former habitual residence -- Not having benefit of Maarouf v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 723 (T.D.) wherein held claimant not required to be legally able to return to country of former habitual residence as denial of right to return may constitute act of persecution by state -- Error not affecting outcome -- Board dealing separately with two incidents when applicant detained, beaten -- Erred in asking whether discrimination so dramatic as to amount to persecution on cumulative basis -- Error compounded by application of s. 2(3), intended for use where change in country conditions occurring in state which applicant fled -- In concentrating on whether persecution appalling, horrendous as opposed to simply whether persecution, Board placing higher onus on applicant than required by law -- Matter returned to differently constituted Board for re-hearing -- Beatings never justified: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) -- Question certified for Court of Appeal: on claim to Convention refugee status by stateless person, is "well-foundedness" analysis set out in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 applicable, based as it is on availability of state protection, or is it only applicable if claimant citizen of country in which fears persecution? -- Immigration Act, R.S.C., 1985, c. I-2, s. 2(1)(a)(i) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), (ii) (as am. idem), (3) (as am. idem).