Date: 19980604
Docket: IMM-1914-97
OTTAWA, ONTARIO, THE 4th DAY OF JUNE 1998
Present: THE HONOURABLE MR. JUSTICE J.E. DUBÉ
Between:
DJEZIRI SAIM,
DERRAS NAJAT,
DJEZIRI AMIRA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application is allowed. The matter is referred back to a differently constituted panel of the Refugee Division.
Judge
Certified true translation
Peter Douglas
Date: 19980604
Docket: IMM-1914-97
Between:
DJEZIRI SAIM,
DERRAS NAJAT,
DJEZIRI AMIRA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] The three applicants are citizens of Algeria who claimed refugee status alleging a well-founded fear of persecution in their country by reason of their political opinion and (in the wife"s case) membership in a social group. The third applicant is their child, a three-year-old girl. The principal applicant was a military engineer and a captain in the Algerian army. He allegedly made three requests for release from the army between 1988 and 1989 on the ground that he disagreed with [TRANSLATION] "the army being used against the people" following the events which occurred in Algeria in 1988.
[2] Paradoxically, some time later, the army offered him a scholarship for four years in France. So the applicant went to France and completed his studies in November 1994. He then deserted from the Algerian army and stayed in France until February 1995 to complete his Ph.D. before coming to Canada.
[3] The panel found that the claimant was not credible with respect to some major elements of his claim and that his testimony contained implausibilities and obvious contradictions. In my view, some of these major elements are beyond the panel"s general knowledge and it was not open to the panel to make a determination on them without further evidence.
[4] First, the panel found that [TRANSLATION] "the claimant deliberately lied about not having a military notebook" on the basis that, according to the panel, every member of the Algerian army has such a document. Second, the panel did not accept the claimant"s inability to produce the contract which allegedly bound him to the Algerian army for seven years. The panel found it [TRANSLATION] "implausible that he would not have kept copies of such important documents". Then, after examining a postcard dated January 2, 1995 from one of the applicant"s friends, the panel stated that the card in question was not signed whereas the name "Omar" in fact appeared at the top of the card because there was no room left at the bottom. Finally, in relation to a police clearance which noted that an arrest warrant was issued in Algeria on May 16, 1995 by the examining magistrate [juge d"instruction] of Maghnia, the panel expressed surprise that this warrant was not issued by a military court.
[5] Under subsection 68(4) of the Immigration Act ("the Act"), the Refugee Division may take notice of any "generally recognized facts and any information or opinion that is within its specialized knowledge". In Bula v. Canada (Secretary of State) ,1 the Federal Court of Appeal stated that it is not only normal but inevitable that in performing their role, panel members will be influenced by the experience they may have acquired in the exercise of their duties. On the other hand, as long as the members rely only on their experience and not on specific information, subsection 68(4) of the Act does not apply.
[6] In Appau v. Canada (Minister of Employment & Immigration),2 the Court ruled that the Refugee Division could not rely on its alleged knowledge of the security procedures of Swiss Air agents or Swiss customs officials. The Court held that this alleged knowledge could not be described as [TRANSLATION] "generally known facts" or "opinion or knowledge that is part of the specialized knowledge of a member of the Refugee Division".
[7] Since the above-mentioned factors played a very important role in the panel"s assessment of the claimant"s credibility, I consider it fair and reasonable to refer this matter back to a panel composed of different members to reconsider the matter on the basis of information from authoritative sources.
[8] Furthermore, the panel does not seem to have considered the grounds for the claim of the female applicant who, though her claim is linked to her husband"s, bases her personal fear on her membership in a particular social group, namely the wives of Algerian soldiers. It referred as follows to this specific claim of the wife at page 2 of its decision: [TRANSLATION] "His wife bases her claim on his and adds that she and her daughter are targeted because they are members of a soldier"s family".
[9] The transcript of the female applicant"s testimony before the panel (at pages 32 to 36) clearly discloses the source of her fears. In response to counsel"s questions, she stated that she fears [TRANSLATION] "the Islamists of the GIA who torture, kill and rape the wives of soldiers because they are soldiers" wives". She said that she does not want to wear the hijab and that women in Algeria are no longer allowed to wear short skirts or even to go to the hairdresser. She herself lived in France for four years and does not accept that women who do not wear the veil are raped or killed. She added in her affidavit in support of her application that she belongs to [TRANSLATION] "a Francophone culture which encourages me to liberate myself and to refuse to submit to the vision of the Islamists, who see women as creatures inferior to men".
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[10] A document in the record entitled "Algeria: Political and Human Rights Update", which was prepared by the Research Directorate of the Immigration and Refugee Board, deals, in Chapter 5, with groups at risk of armed Islamist attacks. Section 5.5, entitled "Women", is of particular interest; it appears to justify the applicant"s fears. Under the circumstances, I consider it appropriate to reproduce the first paragraph of this section:5.5 Women |
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A 22 January 1996 news report indicates that, since the armed conflict erupted in 1992, 343 women have been killed, 310 injured, 30,000 widowed, and 150,000 girls orphaned (Map 22 Jan. 1996). The security forces claimed that armed Islamists reportedly killed 161 women between January and July 1995 (HRW Dec. 1995, 265). Although Islamists' motives for killing some women are unclear, it would appear that those women whom they view as being "un-Islamic" because of the way they dress, the kind of work they do, or their status as wives or relatives of members of the security forces are particularly at risk (see section 5.1) (ibid.; Women in Action 2nd Quarter 1995, 52; UNHCR 8 Sept. 1995, 3; AFP 21 Aug. 1995). An 8 March 1996 news article reports the view that women are targeted because "'reactionary forces' who are assassinating thinkers, literary figures, and poets are rejecting the achievements of Algerian women since independence" (Al-Sharq Al-Awsat 8 Mar. 1996).
[11] Accordingly, the application is allowed and this matter is referred back to a differently constituted panel of the Refugee Division.
[12] In my view, there is no question of general importance to certify.
O T T A WA, Ontario
June 4, 1998
Judge
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-1914-97
STYLE OF CAUSE: DJEZIRI SAIM ET AL. v. MCI
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: MAY 19, 1998
REASONS FOR ORDER BY DUBÉ J.
DATED: JUNE 4, 1998
APPEARANCES:
SERBAN MIHAI TISMANARIU FOR THE APPLICANT
DANIEL LATULIPPE FOR THE RESPONDENT
SOLICITORS OF RECORD:
SERBAN MIHAI TISMANARIU FOR THE APPLICANT
DANIEL LATULIPPE
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 F.C.A., A-329-94, June 19, 1996.
2 (1995), 91 F.T.R. 225.
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