Diab v. Canada (Minister of Employment and Immigration)

In the Matter of the Immigration Act, 1988, c. 35 and Amendments and Regulations Thereto

In the Matter of a Decision of the Immigration and Refugee Board, Convention Refugee Determination Division Regarding the Claim to Convention Refugee Status of Wadih Boutros Diab

In the Matter of the Canadian Charter of Rights and Freedoms

Wadih Boutros Diab, Applicant

and

The Minister of Employment and Immigration, Respondent

Federal Court of Appeal

Isaac C.J., Marceau J.A., McDonald J.A.

Heard: August 22, 1994

Heard: August 24, 1994

Judgment: August 24, 1994

Docket: A-688-91

Counsel:

Mr. Alexander N. Burke, for Applicant.

Ms Cheryl D. Mitchell, for Respondent.

Marceau J.A.:

1     The legal issue raised by this appeal is narrow but its importance is not to be doubted.

2     The appellant is a 66 year old Christian from Lebanon. He lived his entire life in Ain Ebel, a village located in a part of South Lebanon which, in 1989, was controlled by a militia known as the South Lebanese Army (the SLA). In early July of 1989, the appellant was taken from his home by soldiers, threatened and forced to join the civilian guard group attached to the SLA. He served as required in order to protect his life but immediately made plans to leave the country. He left Lebanon on October 4, 1989 and came directly to Canada. The appellant expressed to the Board his conviction that should he return to his country, he will be persecuted by the SLA. He refuses to serve in a para-military force engaged in activities which amount to crimes against humanity and, in any event, he will now be seen as a deserter and punished accordingly. It would obviously be quite unrealistic for him to expect protection from the central Government in Beirut which, for all practical purposes, has disintegrated and is not functioning.

3     The Board did not dispute in any way the credibility of the appellant. It determined, however, that there was no evidence to support a claim to refugee status based on nationality or membership in a particular social group or political activity. According to the Board, the appellant was simply conscripted by the South Lebanese Army, the "de facto government" in Southern Lebanon, a government moreover established to protect the interests of his own people, the Christians. Any punishment he might suffer upon his return would be prosecution for desertion, not persecution.

4     We are all of the view that the decision of the Board cannot be allowed to stand. As we read it, it is indeed a decision based on two assumptions: the main one is that the SLA, as a de facto controlling authority in the region, could legitimately recruit people and use forcible tactics, if need be, to overcome their reluctance. The other, less obvious but still no doubt there, is that because the presence of the SLA had served to protect Christians, it was not reasonable for the appellant, as a Christian, not to view it and support it as a legitimate military organization. We do not think that the Board was entitled to make these assumptions. There is nothing in the evidence to justify the conclusion that the SLA was a legitimate de facto government and not merely a military faction which had been able to maintain control primarily because of support from a foreign government, Israel, and the weakness of the national government in Beirut. Nor is it fair, on the record, to reject out of hand the legitimacy of the appellant's refusal to perform military service that could incorporate elements of criminal activity.

5     The basic issue raised by the appellant's claim to refugee status is whether his opposition to joining the South Lebanese Army constituted a political opinion which could result in persecution within the meaning of the Convention. It appears to us that the Board, because of its ill-founded assumptions, simply failed to address it.

6     The decision will therefore be set aside and the matter will be referred back to be reconsidered.