Date: 20031223
Docket: IMM-621-03
Citation: 2003 FC 1519
OTTAWA, Ontario, this 23rd day of December, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
MALEK MAZOUNI
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated December 20, 2002, wherein Board Member Aida Graff determined the applicant is not a Convention refugee or a person in need of protection.
[2] The Board found that the applicant's testimony was not credible. The Board provided reasons, two of which, upon reading the transcript, are patently unreasonable.
[3] At page 3 in the Board's Reasons for Decision the Board stated:
The claimant went on to say that he occasionally would provide the Director with a name. When the claimant was then asked what happened to the students whose names he supplied, he replied that nothing happened to them and that he saw them around campus subsequent to his denunciation. The panel does not find the claimant's testimony to be credible. If he had indeed supplied the names of students to the Director of Residences in 1996-97, they would not have been seen again on campus. Those were the years during which the terrorist organisations were wreaking havoc in Algeria, and the authorities were ruthless against anyone suspected of sympathising with them, and worse so, with any one suspected of being one of their members. The panel thus finds that the claimant invented his story of providing some names of students to the Director of Residences with no adverse consequence to them to bolster his claim, and in order to remove any suspicion of his having committed an act against humanity. (Emphasis added.)
In fact, the transcript discloses that the applicant did not reply "that nothing happened to them and that he saw them around campus subsequent to his denunciation". The transcript at page 47 reads:
RPO: Do you know what happened to them once you reported them?
CLAIMANT: Really I don't know.
PRESIDING MEMBER: Pardon?
RPO: What happened to them once you reported them?
CLAIMANT: I wouldn't see them, I wouldn't see them. I continued to see them.
This is the only evidence. It is patently unreasonable for the Board to find that the claimant stated that nothing happened to the students. The applicant's answer was vague, or that he did not know what happened to them.
[4] At page 5 in the Board's Reasons for Decision the Board stated:
The claimant testified that he did not finish his University but looked for ways to leave the country at the end of his 1996-97 University session. He remained in Algiers until September 1998 when he left for Turkey. The panel does not find the claimant's testimony to be credible. It took the claimant over a year to leave Algeria despite his alleged fear for his life because he did not comply with the Director's wishes that he deliver to him names of students suspected of terrorism. It would not have been too difficult for that Director, who had allegedly been a member of the military intelligence, to find the claimant between the end of the 1996-97 academic session in June 1997, to the time when the claimant left the country over a year later in September 1998. The claimant's delay of over a year in leaving Algeria despite his alleged fear of the University Director of Residences and former member of the military intelligence at a time when the situation in Algeria was critical, points to a lack of subjective fear. (Emphasis added.)
In fact, the applicant testified that he continued studying at the university until 1998 at which time he fled Algeria. The Board found that he completed his university in 1997 and then "it took the claimant over a year to leave Algeria despite his alleged fear for his life [...]" and "The claimant's delay of over a year in leaving Algeria [...] points to a lack of subjective fear". This is a patently unreasonable finding of fact. In fact, the transcript at page 36 reads:
PRESIDING MEMBER: So you finished the academic year of '97, '98?
CLAIMANT: Yeah, yeah.
PRESIDING MEMBER: And you were admitted ---
CLAIMANT: To '99
PRESIDING MEMBER: Into the fourth year?
CLAIMANT: Yes.
PRESIDING MEMBER: Was that your last year?
CLAIMANT: Yeah 1998 was my last year. I didn't study for 1999, yes 1998.
[5] The Court, in conducting judicial review, is deferential to the Board, and will not substitute its decision for that of the Board. But in cases where critical findings of fact and credibility are perverse and without regard for the evidence, the Court must intervene.
[6] The applicant also submits that the Board member conducting the hearing repeatedly interrupted questions posed to the applicant by his counsel at the hearing and denied the applicant a fair hearing. I have reviewed the transcript of the evidence and I am of the opinion that the repeated interruption did sometimes stop the flow of the questioning on important aspects of the evidence. For example at page 37 of the transcript:
COUNSEL: What was your state of mind like at that period?
PRESIDING MEMBER: I think we are losing, wasting time on state of mind. Let's go back, okay, please. We can cover that afterwards.
[7] Moreover, at the conclusion of the hearing, it was apparent that the presiding member wanted to finish the hearing by noon, and was not available to hear argument. At the last page of the transcript, page 62:
PRESIDING MEMBER: Okay. How long are your submissions going to be?
COUNSEL: Maybe 20 minutes.
PRESIDING MEMBER: Well I would like them in writing. I have to be out of here by 12. Could you not give them to me in writing, it is now five after 12?
COUNSEL: If that's, if you have to leave I'll certainly do that.
[8] Obviously the tribunal member was rushing the applicant and was not allowing counsel twenty minutes for oral submissions at the end of the evidence. Under these circumstances, the applicant may not have had a fair hearing in accordance with the rules of natural justice.
[9] For these reasons, the Court must set aside the decision of the Board and refer the matter back to a differently constituted panel of the Board for redetermination of the this refugee claim.
[10] The parties and the Court agree that this application does not raise a serious question of general importance for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed and the matter remitted back to a differently constituted panel of the Board.
"Michael A. Kelen"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-621-03
STYLE OF CAUSE: MALEK MAZOUNI
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO
DATE OF HEARING: DECEMBER 17, 2003
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: DECEMBER 23, 2003
APPEARANCES BY: Mr. Mario D. Bellissimo
FOR APPLICANT
Ms. Rhonda Marquis
FOR RESPONDENT
SOLICITORS OF RECORD: Mr. Mario D. Bellissimo
Ormston, Bellissimo, Younan
Toronto, Ontario
FOR APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
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