Date: 20030710
Docket: IMM-4515-02
Citation: 2003 FC 860
BETWEEN:
MOHAMMAD ABU-FARHA, and
AHMAD ABU-FARHA
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons follow the hearing on the 8th of July, 2003 of an application for judicial review of a decision of the Refugee Protection Division (the ARPD@) of the Immigration and Refugee Board wherein the RPD found the Applicants not to be Convention refugees, as that term is defined in section 96 of the Immigration and Refugee Protection Act[1], and not to be persons in need of protection within the meaning of section 97 of that Act. The decision under review is dated the 28th of August, 2002.
[2] The Applicants are brothers. They are Palestinians and former residents of the Aoccupied territories@ where the majority of the members of their family continue to live. They are stateless but travelled to Canada on Jordanian passports. At the time of their hearing before the RPD, they were students resident in Canada on the basis of valid student visas.
[3] Mohammad is the older of the two Applicants. At the time of the hearing before the Court, he was twenty-three (23) years of age. He arrived in Canada in November, 1998. He had returned home to the occupied territories for the summer of 2000.
[4] Ahmad arrived in Canada in September of 2000.
[5] Both Applicants filed their claims to Convention refugee status in January of 2001. They each filed with the RPD certificates dated the 27th of February, 2001 indicating that they are registered with the United Nations Relief Works Agency for Palestine Refugees in the Near East (AUNRWA@) as Palestinians refugees. Their registrations are Aunder@ the same Registration Card Number. Both certificates indicate that they were issued on the particular Applicant=s request.[2]
[6] In its reasons for decision, the RPD wrote:
There is nothing in the Narrative of either claimant that relates to specific recent experiences impacting on them as individuals, except for reflections on what happened to them when they were very young. There is nothing of a more recent vintage, nothing about them suffering persecution, fearing torture or cruel and unusual punishment as young men.[3]
[7] The RPD expressed concern about the Applicants= delay in claiming Convention refugee status after arriving in Canada and about Mohammad=s re-availment. It found it not to be credible that the Applicants:
...would not know about Canada=s system for granting asylum to people who are in need of it. They are both well-educated young men. There is an Arab Association here in Ottawa that offers advice on these matters, in fact, does a lot of translating work for refugee claimants. So I would reasonably expect, if there was a real fear of persecution or a real concern that they could be subjected to cruel and unusual punishment, or that there was a real fear of torture, initiatives would have been taken by those young men instead of it just being a passive thing for them, something that they just happened to hear about.[4]
[8] The Applicants testified to more recent experiences of difficulty that they had each encountered in the occupied territories. They expressed fears that they would be harassed to the point of persecution by Israeli authorities and that they would be exploited by radical Palestinian groups.
[9] The RPD concluded that the Applicants had not established that they are in need of Canada=s protection, either as Convention refugees, or because they might be at risk of being subjected to cruel and unusual punishment or in danger of being tortured A...in their country@, by which I take it that the RPD means the occupied territories. Of note is the fact that the RPD makes no mention whatsoever of the UNRWA certificates that were before it. It was not in dispute before the Court that the RPD had failed to put before the Applicants its concern that they had apparently failed to consult with the Arab Association, a failure that the RPD clearly concluded was inconsistent with a genuine fear of persecution. Thus, the Applicants were provided with no opportunity to respond to that concern.
[10] Further, in El-Bahisi v. Minister of Employment and Immigration[5] where Justice Denault had before him an equivalent application for judicial review based upon a claim to Convention refugee status by a stateless person whose habitual residence had been a refugee camp in the Gaza Strip, Justice Denault commented upon the failure to specifically consider an UNRWA document recognizing the Applicant who was before him as a refugee. Justice Denault wrote:
The first error is the tribunal's failure to specifically consider the existence of the UNRWA document. While the tribunal need not mention all of the documentary evidence submitted, it is my opinion that it should consider material evidence or evidence which specifically relates to the applicant's particular claim, especially when the document mentions the applicant by name and it recognizes him as a refugee. In addition, according to the Handbook on Procedures and Criteria for Determining Refugee Status ... previous recognition as a refugee by the UNRWA is relevant to a person's status under the Convention: [citation omitted]
[11] After quoting from the Handbook, Justice Denault noted the following comment relating to it from the decision of the Supreme Court of Canada in Canada (Attorney General) v. Ward[6]:
While not formally binding on signatory states, the Handbook has been endorsed by the states which are members of the Executive Committee of the UNHCR, including Canada, and has been relied on by the courts of signatory states.
[12] Justice Denault concluded following the foregoing quotation:
This being the case, the fact of previous recognition which made the Applicant qualify for protection from the UNRWA is cogent, though admittedly not determinative, and should have been addressed in the Board's decision.
[13] I reach the same conclusion here. While neither, and perhaps both cumulatively, of the foregoing oversights on the part of the RPD might be determinative, each, and certainly the two collectively, warrant reconsideration, by a different panel of the RPD of the decision here under review.
[14] Accordingly, this application for judicial review will be allowed, the decision under review will be set aside, and the Applicants= application for refugee protection and for recognition as persons in need of protection will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[15] Counsel for the Respondent will have seven (7) days from the date of these reasons to serve and file any submissions on certification of a serious question of general importance arising out of these reasons. Thereafter, counsel for the Applicants will have seven (7) days to respond and counsel for the Respondent will have three (3) days to reply to any responding submissions. Thereafter, an Order implementing the result in these reasons will issue.
____________________________
Judge
Ottawa, Ontario
July 10, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4515-02
STYLE OF CAUSE:MOHAMMAD ABU-FARHA ET AL v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: WEDNESDAY July 8, 2003
REASONS FOR ORDER
AND ORDER BY: GIBSON, J.
DATED: July 10, 2003
APPEARANCES BY:
Mr. Rezaur Rahman For the Applicants
Ms. Susanne Pereira For the Respondent
SOLICITORS OF RECORD:
Pfeiffer & Associates For the Applicants
Barristers & Solicitors
157 McLeod Street
Ottawa, Ontario
K2P OZ6
Deputy Attorney General of Canada For the Respondent
Department of Justice
Room 2294, East Memorial Bldg.
284 Wellington Street
Ottawa, Ontario
K1A OH8
[2] Tribunal Record, Volume 1, pages 83 and 85.
[3] Tribunal Record, Volume 1, page 4.
[4] Tribunal Record, Volume 1, pages 4 and 5.
[5] (1994), 72 F.T.R. 117.
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