Federal Court Decisions

Date: 20020218

Docket: IMM-500-01

Neutral citation: 2002 FCT 177

BETWEEN:

                                                             HIKMAT AL HUSSEINI

                                                                                                                                                     Applicant

                                                                              -and -

                               THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                            REASONS FOR ORDER

LEMIEUX J.:

[1]                 The fundamental question raised in this judicial review application is whether the Refugee Division of the Immigration and Refugee Board (the "tribunal") failed to properly exercise its jurisdiction to fully consider the applicant's claim when the tribunal denied it on January 11, 2001, by not considering whether his inability to practice his religion outside his home amounted to persecution.

[2]                 The applicant is a citizen of Iraq and is twenty-eight years old. He arrived in Canada on August 13, 1999, a month after fleeing Iraq. He comes from a devout Shiite Muslim family who, since 1988, have been unable to practice their religion outside the home by attending a mosque and, in fact, have refrained from doing so for fear of persecution by the Iraqi authorities controlled by the Sunni minority.

[3]                 It is common ground between the parties the tribunal believed the applicant was a Shi'a Muslim, practised that religion and, since 1988, practised it behind closed doors.

[4]                 The tribunal referred to the U.S. DOS Iraq Country Report on Human Rights Practices for 1998, February 21, 1999, quoting the following extract:

Iraqi military operations continued to target Shi'a Arabs living in the southern marshes.

The Government reportedly continued to target Shi'a Muslim clergy and their supporters for arbitrary arrests and other abuses. It also reportedly continued forcibly to move Shi'a populations from the south to the north.

[T]wo Shi'a scholars in Bagdad ... reportedly were executed in July.

[5]    From the United States Department of State Annual Report on International Religious Freedom for 1999: Iraq, the tribunal quoted:

Security agents reportedly are stationed at all major Shi'a mosques and shrines and search, harass, and arbitrarily arrest worshippers.

Shi'a groups reported numerous instances of religious scholars -- particularly in the internationally renowned Shi'a academic centre of Jajaf -- being subjected to arrest, assault, and harassment during the period covered by this report.

In Najaf in early April 1999, 15 persons reportedly were wounded and hundreds were arrested while commemorating the 40-day anniversary of as-Sadr's death, a traditional Islamic religious observance. Later in April, the Government executed four Shi'a men for the as-Sadr slaying after a closed trial.

[6]                 The tribunal went on to say "there are also other reports of protesters being killed and being fired upon by security forces, mostly, though not exclusively, in the southern villages.

[7]                 Both counsel focussed on the following extract from the tribunal's reasons, at page 3, as the critical determination by the tribunal on this point:

When assessing whether Mr. Al Husseini has good grounds for fearing persecution on the basis on his religion, it is initially significant that neither Mr. Al Husseini nor any of his family members, has ever experienced serious problems on account of their religion before. At most, according to his evidence, he has been restricted from practising his religion outside of his home. Second, there was no credible evidence before the panel that he has ever participated in the past, or will participate in the future, in activities such as demonstrations, protests, or public manifestations of his religion. The documentary evidence referred to herein indicates that it is these types of activities which might either bring him personally to the attention of the authorities, or put him more generally in a precarious situation. Finally, he and his family do not live in an area in Iraq which is generally targeted by the authorities for serious repression. [emphasis mine]

[8]                 A review of the transcript (certified tribunal record pages 241 and 242) reveals the applicant testified that before the present regime his family practised religion by attending a mosque four or five times a day and this mosque was located at Karada. The applicant also testified his family stopped going to the mosque in 1988 because the security people were taking worshippers from the mosque and putting them in prison. The applicant testified his family continued to practice their religion not at the mosque but at home.

[9]                 Counsel for the applicant referred me to Justice Denault's decision in Fosu v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1813. This case concerned a Ghanian, a member of the Jehovah Witnesses, who claimed refugee status based on a fear of persecution on account of his religion. The applicant's credibility was not questioned. The tribunal, in that case, concluded Ghanian legislation prohibited Jehovah Witnesses from holding religious services and this was a form of restriction. However, the tribunal, added "this is entirely different from banning someone to pray God or to study the Bible".

[10]            Justice Denault allowed the judicial review. He stated the following:

[5]         It appeared from a careful analysis of the evidence and the decision in the case at bar that this Court should intervene. I feel that the Refugee Division unduly limited the concept of religious practice, confining it to "praying to God or studying the Bible". The fact is that the right to freedom of religion also includes the freedom to demonstrate one's religion or belief in public or in private by teaching, practice, worship and the performance of rites [See Note 1 below]. As a corollary to this statement, it seems that persecution of the practice of religion can take various forms, such as a prohibition on worshipping in public or private, giving or receiving religious instruction or, the implementation of serious discriminatory policies against persons on account of the practice of their religion. In the case at bar I feel that the prohibition made against Jehovah's Witnesses meeting to practise their religion could amount to persecution. That is precisely what the Refugee Division had to analyse. [emphasis mine]

[11]            Note 1 to Justice Denault's reasons in Fosu, supra, refers to the Handbook of Procedures and Criteria to be applied in determining Refugee Status, United Nations High Commissioner for Refugees.

[12]            Counsel for the applicant argued the Board had an obligation to analyse whether the restriction on the applicant's ability to practice his religion outside the home i.e., in public, constitutes persecution in the circumstances and this is precisely what the applicant failed to do.

[13]            He points to the applicant's PIF where it is said:

I grew up in a devout Shi'a family and would regularly attend mosque in my area. As a result of growing problems for our community and the fact that many Shi'as were being targeted by the government, I became very fearful and was forced to stop attending mosque and practising my religion because of the fear that was felt. [emphasis mine]

[14]            Counsel for the applicant also pointed to the documentary evidence which has been referred to in these reasons.

[15]            Counsel for the respondent agrees with Fosu, supra, and the right to practice religion publicly. He agreed with Justice Denault's finding there that the Refugee Division must analyse whether curtailing public practice of religion constitutes persecution.

[16]            He submitted Fosu, supra, did not stand for the proposition that any restriction on public manifestation of religion amounts to persecution but rather that certain prohibitions could amount to persecution. Where there is a prohibition on an aspect of public manifestation of religion, the Refugee Division must analyse, he submitted, whether that prohibition amounts to persecution.

[17]            He argued the Refugee Division did not err because it analysed whether the applicant had been prohibited from practising his religion or would be prohibited from practising it in the future. He argued the applicant did not give evidence of any attempt to publicly practice his Shi'a faith over an 11-year period nor did he provide any evidence concerning any repression suffered by his family due to their Shi'a faith.

[18]            He pointed to documentary evidence indicating certain Shi'a mosques and religious adherence had been harassed but that documentation did not indicate the entire Shi'a population had been prevented from publicly praying. The documentary evidence, he argued, spoke to the targeting of certain Shi'a clergy and their followers.

[19]            In conclusion, counsel for the respondent argued the Refugee Division

determined the applicant did not provide credible evidence he was prevented from publicly practising his Shi'a faith and this was supported by the lack of evidence of the applicant on this issue.

[20]            I agree with counsel for the applicant what the tribunal failed to do, in this case, was to analyse, as it was obligated to do under Fosu, supra, the issue of the circumstances why the applicant ceased to go to the mosque since 1988 and whether this inability constituted persecution.

[21]            Counsel for the respondent made a valiant attempt to convince me the tribunal had analysed the issue and had come to the conclusion the applicant presented no credible evidence on the point.

[22]            In my view, he was attempting to write the tribunal's reasons and provide the analysis, in his argument, which the tribunal itself was required to undertake in its decision.

[23]            Ultimately, it may well be the respondent's view will be the one which the tribunal endorses but that is the tribunal's work and not that of counsel.

[24]            For these reasons, this judicial review application is allowed, the tribunal's decision is set aside and the matter is remitted for reconsideration by a differently constituted panel. No question was proposed for certification.

                                                                                                                           "François Lemieux"     

                                                                                                                                                                                                                   

                                                                                                                                          J U D G E         

OTTAWA, ONTARIO

FEBRUARY 18, 2002