Date: 20031212
Docket: IMM-3395-02
Citation: 2003 FC 1461
Ottawa, Ontario, this 12th day of December, 2003
Present: The Honourable Justice James Russell
BETWEEN:
ASMA HAIDAR JABIR ALFARSY
ZULEIKHA HAMED KASSIM AL-BAHRY
(a.k.a. ZULEIKA ALBAHARY)
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of a member of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Member"), dated June 27, 2002 (the "Decision") that Asma Haidar Jabir Alfarsy ("Principal Applicant") and Zuleikha Hamed Kassim Al-Bahry (a.k.a. Zuleika Albahary) ("Minor Applicant") are not Convention refugees. The Applicants request that the Decision of the Member dismissing their claim be set aside and that the claim be referred back for redetermination by a different panel.
BACKGROUND
[2] The Principal Applicant is a citizen of Tanzania who hails from the island of Zanzibar. She based her Convention refugee claim on a fear of persecution at the hands of the Zanzibar police and agents of the Tanzanian government because of her political opinions. The Minor Applicant, also a citizen of Tanzania, based her claim for Convention refugee status on a fear of persecution at the hands of agents of the Tanzanian government by reason of her membership in a particular social group, namely family.
[3] The Principal Applicant claims to have joined a Tanzanian opposition political party known as the Civic United Front (CUF) in 1996. Tanzania is under the control of a party called the Chama Cha Mapinduzi (CCM). Conflict has existed between the ruling CCM and the CUF for a number of years.
[4] In the 1995 election, the CCM claimed victory after allegedly tampering with the election results. Due to this alleged corruption, the CUF refused to recognize the legitimacy of the elected government. As a result, the hostility between the two parties became serious.
[5] In 1999, the secretary of the British Commonwealth mediated an agreement to end the hostilities between the two parties. After that agreement was signed, the Principal Applicant became even more active with the CUF. She indicates that she was fully involved in campaigning and attending rallies and meetings of the party. She also indicates that her involvement was open and well-known to her friends and neighbours.
[6] The Principal Applicant alleges that, despite the fact that the CCM signed the brokered agreement allowing for freedom of speech in Zanzibar and guaranteeing the right to belong to any legitimate political party, the government never adhered to the accord.
[7] The Principal Applicant indicates that continuous harassment forced her to campaign more discreetly. On January 10, 2000, she was detained by the police and taken to a station for questioning. She was allegedly told by the police that they had video evidence of her participation in a demonstration against the CCM. She denied any participation. She was slapped and forced to sign a paper agreeing not to be involved with the CUF.
[8] In September, 2000, with an election nearing, the Principal Applicant began to campaign again for the CUF. The election was postponed in some areas because of alleged irregularities with the ballots. The CUF complained that the CCM engaged in foul play by rigging the election results. The CUF ordered its members not to participate in the rescheduled election set for November 7, 2000.
[9] The Principal Applicant contends that, on November 5, 2000, the police came to her home. They roughed up her family members and searched the house. They stole some jewellery and took documents, including her property title deed, and some CUF materials. The police reminded the Principal Applicant of her pledge not to be active with the CUF.
[10] The next day, the Principal Applicant was arrested and detained for three days. She alleges that, during her detention, she was beaten by the police and forced to lie on the floor while they hit the calves of her legs with sticks. She says that she was held in a small, windowless room with no washroom facilities.
[11] The Principal Applicant was charged with threatening the peace and possession of illegal materials (i.e. CUF brochures). Her brother secured her release by posting a bond. She was ordered to report to court on November 22, 2000. She feared reporting to the police station and decided to leave Tanzania. She alleges that, after her arrival in Canada, the police in Tanzania picked up her brother when she did not report to the court as ordered.
THE DECISION IN QUESTION
[12] The Member found that neither Applicant qualified for Convention refugee status because neither established an "objectively well-founded fear of persecution on a Convention ground."
ISSUES
[13] The Applicants raise three issues:
Did the Member err in concluding that current country conditions had changed sufficiently to negate any objective fear of persecution for political reasons, with particular regard to the effectiveness and durability of those changes?
Did the Member err in failing to address the circumstances particular to the Principal Applicant when determining a well-founded fear did not exist?
Did the Member err by failing to provide notice at the hearing that the alleged change in circumstances was central to the determination that the Applicants did not have a well-founded fear of persecution and did the Member, therefore, err in not asking the Applicants or counsel to address the effectiveness of the change?
ARGUMENTS
Applicants
Did the Member err in concluding that current country conditions had changed sufficiently to negate any objective fear of persecution for political reasons, with particular regard to the effectiveness and durability of those changes?
[14] The Applicants submit that the tests to determine if a change in country circumstances negates a well-founded fear of persecution are canvassed in Youssef v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 413 (F.T.D.) at para. 13:
Professor Hathaway, in speaking of change of circumstances, states that "the change must be of substantial political significance, there must be reason to believe that the substantial political change is truly effective and that the change of circumstances must be shown to be durable".
...
There is in the determination of changed circumstances an objective standard which considers the social and political policy of the country in question based on documentary evidence in the record on the day of the hearing. The change must be fundamental and durable enough to eliminate any doubt of a possible risk of persecution.
[15] The Applicants further submit that the guidelines for assessing changed circumstances have also been referred to by the Federal Court of Appeal in (Ahmed v. Canada (Minister of Employment and Immigration) A-89-92, July 14, 1992, (not reported) and Cuadra v. Canada (Minister of Employment and Immigration) A-179-92, July 20, 1993, (not reported). In Youssef,supra, Teitelbaum J. referred to Ahmed, supra, and Cuadra,supra:
Similarly, the mere fact that there has been a change of government is clearly not in itself sufficient to meet the requirements of a change of circumstances which have rendered the genuine fear of a claimant unreasonable and hence without foundation.... The mere declarations of the new four-month old government that it favoured the establishment of law and order can hardly be seen, when the root of the appellant's fear and the past record of the new government with respect to human rights violations are considered, as a clear indication of the meaningful and effective change which is required to expunge the objective foundation of the appellant's claim.
In Cuadra Marceau J. referred to Ahmed in reviewing the panel's decision:
Again, a more detailed analysis of the conflicting evidence in respect of a change in circumstances was necessary to meet the requirement that the change be meaningful and effective enough to render the genuine fear of the appellant unreasonable and hence without foundation.
[16] The Applicants submit that the Member was mistaken in determining that the changes that had taken place in Tanzania to the time of the hearing were sufficient to remove the objective foundation for their refugee claims.
[17] The Applicants argue that, in rendering the Decision, the Member clearly acknowledged that the agreement between the two hostile parties had not even been implemented at the time of the hearing:
The reconciliation agreement of 2002 is the result of negotiations between the two political parties after the brief foundering of their October 29, 2001, accord. That accord is a promising one. Its implementation would include the following provisions: ....
[T]he Secretaries-General of both parties travelled to the United Kingdom to jointly explain the ways and means they reached the consensus after years of conflict and the details of how they are to implement the political agreement the two parties have finally reached.
[18] The Applicants submit that, while there is an extensive list of proposed reforms outlined by the Member, some of which had been implemented at the time of the Hearing, there had been very little time to determine if such changes, and those planned for the future, would be effective and durable enough to ensure a fundamental change in Tanzania.
[19] The Applicants submit that documentary evidence before the Member showed that, within a month of the agreement between the CUF and the CCM, conflict had already arisen between the two parties. This is noted in a memorandum prepared by the Research Directorate of the Immigration and Refugee board in Ottawa at p. 30 of the Record:
Relations between the CUF and the CCM reportedly deteriorated again in November 2001 when "the House of Representatives' constitutional, justice and good governance committee, amended the bill on the establishment of a joint implementation committee of the agreement"
[20] The agreement had been reached in October, 2001. The Applicants submit that, given the long-standing animosity between the two parties, a short period of reconciliation cannot be seen as evidence of sufficient stability to alter the entire political landscape of Tanzania and effect a durable change in Tanzanian life.
[21] Declarations of intent must be examined against the history of the conflict with a view to evaluating the likely permanence of the changes.
[22] The Applicants submit that previous agreements between the CUF and the CCM have fallen apart within a fairly short period.
[23] The Applicants further argue that the documentary evidence revealed that the failed agreement mediated by the Commonwealth in June of 1999 had led to even more serious abuses by the CCM government. This is referred to in an article entitled "Zanzibar Democracy on Shaky Foundation," from an unknown source at p. 54 of the Record:
The Commonwealth fixed a deadline of May 2000 for implementation of the Agreement but little progress has been made. At the time of writing the Agreement appears still-born. This bodes ill for the elections scheduled for October 2000 and their aftermath.
The international community should then provide strong backing for the resurrection on the June 1999 Commonwealth -brokered agreement, which is essential if the shaky foundations of Zanzibar's democratic transition are to be replaced with structures of greater solidity and durability
[24] The Applicants point out that, as predicted by this article, the elections in October 2000 were a disaster in Tanzania. Both before and after the elections, opposition persons were harassed and intimidated by the ruling party.
[25] The Applicants contend that the failure of this earlier agreement had a direct impact on the Applicants in the case at hand. This was acknowledged by the Member in the Decision:
I have no reasons to doubt that the principal claimant was detained briefly in January 2000 and released after being forced to sign a pledge to end her CUF activities. I accept as well that police entered her home in November 2000, pushed her and her daughter about and took CUF brochures as well as documents including her property deed as she alleges. I accept on the basis of her credible testimony that because of her CUF activities leading up to the election of October 2000 she was arrested on November 6, 2000, detained for three days and, following a court bail hearing was released on November 9 when her brother posted bail. The evidence in the latter regard is supported by the documentary evidence. Furthermore, I accept that her treatment at the hands of police included being slapped on the face and being hit with sticks on her hands and on the calves of her legs.
[26] The Applicants submit that, as the agreement had been reached only a few months before the hearing, and given the history of the conflict and the fact that the agreement had not yet been implemented, the Member erred in determining that there was a sufficient, fundamental and durable change that negated the Applicants' well-founded fears of persecution.
[27] The Respondent contends that the Applicants' submissions presume that the Member rejected their claim due to a change in country conditions. The Respondent takes the position that this was not the case.
[28] The Respondent submits that a person may only be a Convention refugee if they have a well-founded fear of persecution. Even if their fear of persecution is well-founded, a claimant may be denied status if the conditions in their country giving rise to their fear of persecution cease to exist. However, under the structure of the Convention refugee definition, it is a condition precedent that a person be found to have a well-founded fear of persecution before he or she can lose status due to a change in country conditions. The Respondent submits that, unless the Member determined that the Applicants' fear of persecution was well-founded, refugee status could not be denied due to a change in country conditions.
[29] The Respondent argues that the record reveals that the Member never determined the Principal Applicant to have an objectively well-founded fear of persecution. The Respondent's argument on this point can be summarized as follows:
(a) The Member stated at the beginning of the Decision that neither Applicant established an objectively well-founded fear of persecution;
(b) The Member noted that the last time the police had asked for the Applicant was in December, 2000, but there was no evidence that the police had a continuing interest in her;
(c) The Principal Applicant's brother, who also attracted police interest due to his CUF activism, was released after he was detained for failing to appear in Court;
(d) The Member outlined how the documentary evidence revealed that CUF activists who were arrested when they participated in the 2000 elections, even high ranking CUF members, had been released;
(e) The Member explained how the relations between the CUF party and the ruling CCM party have improved; and
(f) The Member noted that the documentary evidence did not reveal that the Applicants had an objectively well founded fear of persecution in Tanzania.
[30] The Respondent contends that, while the Member may have considered that the circumstances in Tanzania had evolved since the Applicants had left, the Member did not conclude that the Applicants had a well-founded fear of persecution so as to require an assessment based upon a change in country conditions.
[31] The Respondent submits that the Member made no direct finding on subjective fear of persecution either. As no positive finding was made on the existence of subjective or objective fear, there could not have been a finding that the Applicants were Convention refugees so as to require an analysis of a change in country conditions.
Did the Member err in failing to address the circumstances particular to the Applicants when determining a well-founded fear did not exist?
[32] The Applicants submit that the Member, in analysing changed circumstances, did not have regard for the personal situation of the Applicants. They refer to the following words from Youssef, supra, at p. 7:
There is in the determination of changed circumstances an objective standard which considers the social and political policy of the country in question based on documentary evidence in the record on the day of the hearing. The change must be fundamental and durable enough to eliminate any doubt of a possible risk of persecution. However, in my opinion it should be looked at in light of the applicant's experience so that in his particular case and in light of the basis of the claim there is no longer any question of possible risk.
[33] The Applicants note, for example, that while the Member refers to the release of all political detainees arrested following the unrest in late January, 2001, there is no analysis directly concerning the Principal Applicant whose position is exceptional because she faces a civil suit and an outstanding arrest warrant. This means she might still face persecution if she is returned.
[34] The Applicants insist that there was no evidence before the Member that the Principal Applicant had been pardoned, or that the outstanding warrant arising out of her failure to appear was no longer effective. The Principal Applicant notes that the Member accepted that she had been arrested and abused in custody because of her political activities and no evidence was proffered to show that she would not be arrested on her return.
[35] The Applicants also draw attention to the fact that, as indicated in the Tanzania Country Reports on Human Rights Practices - 2001 released by the United States Department of State Bureau of Democracy, Human Rights, and Labor on March 4, 2002, the human rights record of the CCM regime has been abysmal:
The Government's human rights record was poor; while there were improvements in a few areas, there continued to be serious problems, particularly in Zanzibar. ... Police killed several persons, and members of the police regularly threatened, mistreated, or occasionally beat suspected criminals during and after their apprehension and interrogation. There were reports that police used torture in Zanzibar. Prison conditions throughout the country remained harsh and life threatening. Arbitrary arrest and detention and prolonged detention remained problems. Police harassment of members and supporters of the political opposition declined significantly following the October reconciliation agreement between the Government and the opposition. The inefficient and corrupt judicial system often did not provide expeditious and fair trials. Pervasive corruption continued to have a broad impact on human rights. The Government infringed on citizens' privacy rights and limited freedom of speech and of the press, and freedom of assembly and association. The Government declared that four government and party officials were non citizens and therefore no longer could retain their positions. Police used excessive force to disperse demonstrations in Zanzibar and Dar es Salaam in January, which resulted in numerous deaths and injuries; more than 2,000 persons were displaced.
[36] The Applicants accept that this report refers to a substantial decline in the harassment of opposition members after the October agreement, but they submit that the level of police and government abuse outlined in this report cannot be changed overnight or even within a few months. The report indicates that harassment has not disappeared entirely.
[37] The Applicants allege that, against this kind of background, the Member should have examined the chance of the Principal Applicant being further abused by the police with regard to her previous political arrest, notwithstanding statements about future reforms.
[38] The Respondent submits that, as with the previous ground of objection, the Member did not engage in a change in country conditions analysis. Hence, there was no requirement to conduct a personalized change in country conditions assessment.
[39] The Respondent submits that the record reveals that the Member had the Applicants particular position in mind when assessing the issue of an objective basis for fear of persecution. Hence, the Member could not have ignored the Applicants' own circumstances when assessing their claim.
Did the Member err by failing to provide notice at the hearing that the alleged change in circumstances was central to the determination that the Applicants did not have a well-founded fear of persecution, and did the Member err in not asking the Applicants or counsel to address the effectiveness of the change?
[40] The Applicants submit that the Member erred in not specifically raising "change in circumstances" as an issue and that the Member's failure to request submissions on this issue from the Applicants and their counsel was unfair.
[41] The Applicants say that, because current country conditions are an inherent element of the objective element of a well-founded fear, and because substantial changes of a short duration had taken place around the time of the hearing, special care should have been taken by the Member in this regard.
[42] The Applicants submit that the Decision itself makes it clear that this issue was not specifically addressed:
Issues identified at the outset of the hearing included personal identity of both claimants, the political identity of the principle claimant, credibility, the objective basis for a well-founded fear of persecution for both claimants.
[43] The Applicants argue that the objective basis of a well-founded fear has several elements and the Member should have, in fairness, specified the particular element that would be the determinative issue in this case. The Applicants take the position that the Member erred by not identifying change of conditions as a central issue and in not asking counsel to address the specifics of this matter.
[44] The Respondent submits that the Member did not conduct an assessment of a change in country conditions so that there was no duty to apprise the Applicants that change in country conditions would be an issue at the hearing.
[45] The Respondent further submits that, even if the Member had considered a change in country conditions, the duty of fairness would not require that the Applicants be given specific notice of this consideration.
[46] The Respondent's position is that the issue of a change in country conditions is inherent in the test for Convention refugee status under the Immigration Act, R.S.C. 1985, c. I-2. The Respondent points out that the claimant has the burden of establishing a well-founded fear of persecution, including the objective aspect of that fear. The Respondent argues that a notice requirement under these circumstances would result in a two-step hearing and this is what Parliament did not intend to create when it changed the law to provide for a one-step refugee determination process. The Respondent submits that the authorities are clear that no separate notice need be given to apprise a claimant of this issue: (Canada (Minister of Employment and Immigration) v. Mathiyabaranam (1997), 156 D.L.R. (4th) 301 (F.C.A.) and Aboubacar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 214 (F.C.T.D.).
ANALYSIS
What is the applicable standard of review to apply to the Decision of the Member?
[47] In C.E.C.U. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 554 Snider J. discussed the appropriate standard of review to apply in Immigration and Refugee Board decisions in relation to questions of fact:
7. Questions of credibility and weight of evidence are matters particularly within the Board's jurisdiction to decide. As a result, the appropriate standard of review is one of patent unreasonableness, which means that findings of credibility and of fact must be supported by the evidence and must not be made capriciously or based on erroneous findings of fact (Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 at para. 4 (C.A.); Bennasir v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 513 (T.D.) (QL); Ndombele v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1211, [2001] F.C.J. No. 1690 (QL)). Even if this Court would have reached a different conclusion based on the evidence, the Board's decision should not be overturned unless it was perverse, capricious or made without regard to the evidence before it (Grewal v. Minister of Employment and Immigration, [1983] F.C.J. No. 129 (C.A.) (QL); Ankrah v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 385 (T.D.) (QL); Boye v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1329 (T.D.) (QL)).
[48] Blanchard J., in Zsuzsanna v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1642 (F.C.T.D.) considered the applicable standard of review to apply to questions of law and mixed fact and law in relation to decisions of the Convention Refugee Determination Division of the Immigration and Refugee Board:
Standard of Review
12. Questions of law in such applications are governed by the standard of correctness. [See Pushpanathan v. Canada [1998] 1 S.C.R. 982.] With respect to the findings and conclusions of fact, a court on judicial review will intervene only when the findings and conclusions of fact are patently unreasonable. [See Conkova v. Minister of Citizenship and Immigration [2000] F.C.J. No. 300, on line: QL, p. 2, at para. 5.]
13. The issue of "discrimination vs. persecution" is a question of mixed law and fact. The applicable standard of review for questions of mixed law and fact was considered by Richard J., as he then was, in Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), where he applied the standard of patent unreasonableness. At page 763 of his reasons he wrote:
Given my conclusion that the Refugee Division is a specialized tribunal to which this court should accord considerable deference, when reviewing its findings on questions of law and questions of fact the standard of judicial review to be applied is patent unreasonableness. In Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation [1979] 2 S.C.R. 227">[1979] 2 S.C.R. 227, at p. 237, the Supreme Court applied the standard of patent unreasonableness and gave some indication as to its meaning:
...was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?
I agree with the above reasons and, for the purpose of this judicial review, I will adopt the patent unreasonableness standard of review for questions of mixed law and fact.
[49] The first issue in this case relates to whether the Member applied the correct test in determining whether the changes in country conditions were effective and durable. This is a question of law, which I believe should be assessed on a standard of correctness.
[50] The question of whether the Member considered the particular circumstances of the Applicant is a question of fact which is reviewable on the standard of patent unreasonableness.
[51] The final issue that the Applicants raise, namely, whether the Member erred in failing to provide notice at the hearing that the alleged change in circumstances was central to the determination that the Applicants did not have a well-founded fear of persecution, and whether the Member erred in not asking the Applicants or their counsel to address the effectiveness of the change, is, in my opinion, a natural justice issue that I should review using a standard of correctness.
Did the Member err in concluding that the current country conditions had changed sufficiently to negate any objective fear of persecution for political reasons, with particular regard to the effectiveness and durability of those changes?
[52] The Applicants argue that the Member failed to apply the correct test to determine if the changes in country conditions were effective and durable and that the Member was mistaken in the Decision in finding that the changes had removed the objective fear aspect of the Applicants' refugee claims.
[53] The Decision reveals that the Member believed the narrative of the Principal Applicant and raised no credibility issues. The only ground cited by the Member for rejecting the claims was a failure to establish "an objectively well-founded fear of persecution on a Convention ground."
[54] As pointed out by the Respondent, the Member specifically referred to the reasons for her conclusions; some of the reasons had to do with the Principal Applicant's own situation (the fact, for instance, that there was no evidence the police had an interest in her at the time of the hearing), and some had to do with what the Member felt was revealed in the documentary evidence about the risks the Applicants would face if they returned to Tanzania.
[55] In my opinion, the Applicants are merely disagreeing with the Member concerning the conclusions reached on the evidence. Having reviewed the factors taken into account by the Member, it is obvious to me that different conclusions might be reached. But disagreement with the Member's conclusions is not grounds for judicial review. I do not find that the Member erred in law in deciding that objective fear had not been established and I am of the opinion that the Member applied the correct legal principles to reach this conclusion.
[56] The Member noted that, in addition to matters that directly impacted upon the Applicants, there was evidence of change in Tanzania, in terms of the relationship between the CCM and the CUF. The question remains whether this change was "fundamental and durable enough to eliminate any doubt of a possible risk of persecution." I believe that is a question that the Member had to consider and, in fact, did consider by balancing the probabilities on the evidence presented. The fact that the Applicants disagree with the conclusions reached by the Member does not make that conclusion wrong. There was no reviewable error in this regard.
Did the Member err in failing to address the circumstances particular to the Applicants when determining a well-founded fear did not exist?
[57] The Applicants submit that the Member, in her analysis of changed circumstances, should have performed an evaluation of the personal situation of the Applicants and cite Youssef, supra, at p. 7 as authority.
[58] The Applicants note, for example, that while the Member refers to the release of all political detainees arrested following the unrest in late January 2001, there is no analysis directly concerning the Principal Applicant.
[59] The Applicants further submit that there was no evidence before the Member that the Principal Applicant had been pardoned or that the outstanding warrants arising out of her failure to appear were no longer effective.
[60] The fact that the member does not specifically refer to the Principal Applicants' civil law suit and the outstanding warrants does not mean that the personal situation of the Applicants was neglected by the Member.
[61] The civil suit and the warrants were politically motivated. They were all part of the ruling party's harassment of CUF supporters.
[62] The documentary evidence mentioned that CUF members had been released from detention. If the legal action against the Applicants was politically based, there is no reason to assume that they would be treated differently from other CUF members who had previously suffered persecution, legal harassment and even incarceration.
[63] In addition, the Member specifically refers to the fact that the police appeared to have lost interest in the Principal Applicant and that the Principal Applicant's brother had been released.
[64] The Member canvassed the political situation in Tanzania in an effective manner, with an eye to determining whether the Applicants themselves had an objective basis to fear persecution. There was no reviewable error in this regard.
Did the Member err by failing to provide notice at the hearing that the alleged change in circumstances was central to the determination that the Applicants did not have a well-founded fear of persecution and did the Member therefore err in not asking the Applicants or counsel to address the effectiveness of the change?
[65] The Applicants submit that the Member erred in not specifically raising change in country conditions as an issue. They say that this failure to request submissions from the Applicants and their counsel should be regarded as unfair and as a reviewable error.
[66] In Aboubacar, supra, Dawson J.(F.T.D.), referred to Mathiyabaranam, supra, and dealt with a similar argument:
38. I find this submission to be without merit. In Mathiyabaranam v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1676, the Federal Court of Appeal wrote at paragraphs 9 and 10 that:
The question to be decided, then, is whether specific notice must be given to a claimant before the Board may make a finding of no credible basis at the end of the hearing to decide Convention refugee status. There is no express statutory requirement to give any extra notice of this matter. Any such requirement to give notice, therefore, must be based on the natural justice right that a person has to know the case to be met [See Note 9 below] in an administrative proceeding affecting his or her interests. In my view, as I shall explain, there is no right to receive any extra notice about the possibility of a finding of no credible basis. Hence, there has been no violation of natural justice in this situation.
Any claimant is aware or should be aware of the risk of a no credible basis finding even without any additional notice being given about this potential outcome. A refugee claimant must realize that he or she must establish, as part of his or her claim, a credible basis for his or her claim. You cannot establish a claim for refugee status without first establishing a credible basis for that claim; the one is totally dependant upon and included in the other. I cannot imagine what a claimant, if given special notice, could possibly add to his or her case. All of the available evidence should already have been placed before the Board as part of the claim for refugee status.
39. Mr. Aboubacar argued that Mathiyabaranam was decided before the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and that its outcome would be different as a result of the decision in Baker, particularly in light of the importance the Supreme Court of Canada gave to the significance of a decision upon an applicant.
40. However, in Baker, the Supreme Court of Canada noted that the duty of fairness is contextual and that at the heart of the analysis is whether, considering all of the circumstances, an individual was afforded a meaningful opportunity to present his or her case fully and fairly.
41. This was the very issue the Court of Appeal directed itself to in Mathiyabaranam, and in my view nothing in the Baker decision casts doubt on the Court of Appeal's analysis. A credible basis determination is inherent in the definition of Convention refugee which requires a claimant to establish on credible evidence a well-founded fear of persecution.
42. A claimant has no evidentiary burden separate from, or additional to, the obligation to establish on credible evidence the existence of a well-founded fear of persecution.
[67] This is an issue of characterization. The Member is quite clear in the Decision that the claims are rejected because the Applicants did not have an objectively well-founded fear of persecution. Several factors went into this determination, including what had happened in Tanzania since the Principal Applicant had suffered at the hands of the authorities. There was no obligation on the Member to do more than indicate that objective fear was an issue, and the Applicants, who must have been aware that the definition of a Convention refugee is forward looking, had every opportunity to show at the time of the hearing that an objective fear existed because changes in Tanzania were not effective and durable. There was no reviewable error in this regard.
ORDER
THIS COURT ORDERS THAT:
1. This Application for judicial review is denied;
2. There are no questions for certification.
"James Russell" JFC
FEDERAL COURT OF CANADA
Date: 20031212
Docket: IMM-3395-02
BETWEEN:
ASMA HAIDAR JABIR ALFARSY ET AL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3395-02
STYLE OF CAUSE: ASMA HAIDAR JABIR ALFARSY
ZULEIKHA HAMED KASSIM AL-BAHRY
(a.k.a. ZULEIKA ALBAHARY)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, SEPTEMBER 9, 2003
REASONS FOR ORDER BY: RUSSELL J.
DATED: December 12, 2003
APPEARANCES BY: Mr. Ceri Forbes
For the Applicants
Mr. Martin Anderson
For the Respondent
SOLICITORS OF RECORD: Mr. Ceri Forbes
Barrister & Solicitor
14 Prince Arhtur Ave., Suite 108
Toronto, Ontario
M5R 1A9
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
Email this Content