Date: 20041118
Docket: IMM-1876-04
IMM-1877-04
Citation: 2004 FC 1619
BETWEEN:
MAKRAM MOHAMED ELKEBTI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] Makram Mohamed Elkebti has been living the good life in Canada. He came here from Libya on a student visa which was renewed from time to time. He lied. He wasn't a student at all. He used his tuition money to play the stock market.
[2] He applied for permanent residence. The underlying documentation was bogus. He was turned down.
[3] He made a refugee claim. It was turned down. The Immigration Board was not satisfied that he was who he said he was as identity documents appeared to have been tampered with. Apart from identity, the balance of his refugee claim, ie. that if the Libyan authorities had found that he had applied for permanent residence in Canada he would be severely punished, that he would also be punished because a family member lives in the US who is anti-Qadhafi and because he might be considered a draft dodger was also turned down..
[4] Mr. Elkebti then made an application on humanitarian and compassionate grounds to remain in Canada, and also applied for a pre-removal risk assessment. Those applications were also dismissed. This is a judicial review of those decisions. I find no reviewable error in either decision and so dismiss the applications. Here are my reasons.
[5] Counsel for Mr. Elkebti suggested that now that his identity has been established, it should follow that the rest of his claim had validity. Since his unsuccessful refugee claim was under the former Immigration Act, R.S.C. 1985, c. I-2, the Officer who dealt with the PRRA and H & C applications took a fresh look at the entire matter. The current Immigration and Refugee Protection Act, S.C. 2001, c. 27, is somewhat broader in scope as a person may not fit the definition of a Convention refugee but still be in need of international protection as specified in section 97 of the Act.
[6] The PRRA decision is found in a government form. Some criticism was levied at the Officer for the way in which she filled in the form. She left some check marks blank. However, it is clear that she did so because, rather than to make a decision which could be considered cursory, she explained her position on those points in great detail. For instance, it is plain and obvious not only that Mr. Elkebti brought forth new evidence, but also that the Officer considered that evidence.
[7] It was submitted by Mr. Elkebti's former counsel that he would face death on his return to Libya. There is not a shred of evidence to support that allegation.
[8] It was said he was at risk of mistreatment because he has been away from Libya for many years and because he has family members with anti-government ties. In addition, he might be jailed for evading military service.
[9] All of these points were thoroughly dealt with by the Officer. She noted that the situation was not good in Libya, but was improving. Perhaps another officer would have come to a different conclusion, but there is nothing unreasonable in her analysis. The real issue is not what daily life is like in Libya, but rather whether there is a well-founded subjective and objective fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. It is the latter two which have application here and Mr. Elkebti was found wanting.
[10] The Officer, based on country conditions, particularly the UK Immigration and Nationality Directorate, found that, at worst, returning Libyans, such as students, are subject to being interviewed upon their return and that rejected asylum-seekers may also face temporary detention. The Officer was not satisfied that Mr. Elkebti has relatives who are anti-Libyan. Morever, country conditions indicated that collective punishment, such as the punishment of family members in connection with political crimes, is no longer practiced.
[11] As far as military service is concerned, it appears that there is compulsory military service, and a draft evader could be jailed for a period of time. Apart from the fact that Mr. Elkebti appears to have done nothing to establish that he is a bona fide conscientious objector, there is nothing in the law of Libya inherently persecutory as regards Mr. Elkebti, or others in his position. The law was set out in Zolfagharkhani v. Minister of Employment and Immigration (1993), 20 Imm.L R. (2d) 1. MacGuigan J.A. speaking for the Federal Court of Appeal said:
After this review of the law, I now venture to set forth some general propositions relating to the status of an ordinary law of general application in determining the question of persecution:
(1) The statutory definition of Convention refugee makes the intent (or any principal effect) of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution.
(2) But the neutrality of an ordinary law of general application, vis-a-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required.
(3) In such consideration, an ordinary law of general application, even in non-democratic societies, should, I believe, be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory.
(4) It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground.
See also Ates v.Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1599, currently in appeal.
[12] All this led the Officer to conclude "I find that there is less than a mere possibility that the applicant will be subject to persecution by reason of a Convention ground. I also find that he is not likely to be at risk of torture, risk to life, or risk of cruel and unusual treatment or punishment on the same basis." It was argued on behalf of Mr. Elkebti that the Officer got her burden of proof wrong. The burden on this point is that the Applicant has to establish that there is more than a mere possibility that he will be subjected to persecution. The point does not have to be proved on a balance of probabilities. All the Officer was saying here is that there wasn't even a mere possibility. This is similar to my saying that her decision is not reviewable because it was not unreasonable. It may well be that the standard is patent unreasonableness. Lowering the bar for the sake of analysis is not an error.
[13] There was also some criticism levied at immigration officials who had informed the Libyan authorities that Mr. Elkebti might be returning. Although there was some objection to this correspondence forming part of the record, I prefer to deal with it on the basis that it is not relevant. The authorities have to be assured that the country to which he is being returned will accept him.
[14] Finally, it was submitted that Canada should have enquired of the Libyan authorities as to whether or not Mr. Elkebti would be at risk of persecution. This submission is diametrically opposed to the submission that there should have been no communication with the Libyans at all. It may well be that, had it been found that Mr. Elkebti would be at risk of persecution and that he was being deported from Canada based on criminal activity, such as in the case of Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, such an inquiry may have been necessary. The situation is quite different here. Mr. Elkebti has been proven to have an easy way with the truth, but he is not a criminal and, unlike in Suresh, there has been an express finding that he would not be subject to persecution were he to return to Libya.
[15] As for the H & C application, there is no evidence that he would be mistreated in Libya, but at a lower level than section 96 and 97 of the Act, such as harassment. As to his Canadian ties, he has an uncle here, he is said to have a girlfriend here, and he has lived here for some time. There is nothing unusual in that situation which would lead to the conclusion that the Officer was unreasonable in rejecting the claim (Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 403 (Q.L.).
[16] There is no question of general importance to certify.
(Sgd.) "Sean Harrington"
Judge
Vancouver, B.C.
November 18, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1876-04 & IMM-1877-04
STYLE OF CAUSE: MAKRAM MOHAMED ELKEBTI
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: November 16, 2004
REASONS FOR ORDER: HARRINGTON J.
APPEARANCES:
Mr. Gerald G. Goldstein FOR APPLICANT
Mr. Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Barbeau, Evans & Goldstein FOR APPLICANT
Vancouver, B.C.
Morris Rosenberg, Deputy FOR RESPONDENT
Attorney General of Canada