Date: 20040903
Docket: IMM-3349-03
Citation: 2004 FC 1212
BETWEEN:
FAWZI KHALIL AGHA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] Fawzi Khalil Agha is a young, stateless Palestinian, born in Kuwait and educated there and in Lebanon. Three years ago, when he was 19, he flew to the United States on a student visa. He had no intention of studying there. One week later, he came to Canada and asked for asylum.
[2] His case is that while he was in Lebanon he resisted recruitment overtures from the Fatah. More particularly, one evening in early March 2001, armed men forced their way into his house and threatened him. Fearing for his life, or otherwise believing he was in need of international protection, he fled Lebanon and came to Canada.
[3] The Immigration and Refugee Board did not believe him. The threat by armed men was not mentioned in his Personal Information Form ("PIF"), and he had taken steps to get his American visa before that incident. The Board found that he was neither a refugee nor a person in need of protection and dismissed his application. This is a judicial review thereof.
The Case For
[4] Counsel for Mr. Agha submitted that there was a reasonable explanation why the incident with the armed men was not mentioned in the PIF. It was simply one of the details of the unfortunate situation in which he found himself. Surely, it is not necessary to give an exhaustive list of all details. This is not a case where there was a discrepancy between the PIF and oral testimony which might suggest that the claim was fabricated.
[5] The issue, he added, is not when the problems began, or for that matter when they ended. The issue is whether Mr. Agha is a refugee or otherwise in need of protection under the terms of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[6] He suggested that the Board exercised flawed logic in determining that he was not a refugee because he had taken steps to obtain his visa before armed men broke into the house.
[7] He was also critical of the fact that the Board did not believe that forced recruiting was going on in camps in Lebanon. The Board had before it information from its own research directorate which had been provided with information from a professor specializing in Lebanese matters. He said he had never heard of forced recruitment and very much doubted that such a practice was conducted in camps because of competition between many Palestinian factions. That information was dated in August 2002.
[8] On the other hand, Mr. Agha prefers a Danish Immigration Service Report, which goes back to 1998, which said that virtually all Palestinian organizations were present in the camps and internal disputes made the situation very tense.
The Case Against
[9] The Minister submitted that the Board was entitled to draw adverse conclusions because the PIF did not mention the key element in Mr. Agha's case, because his evidence was vague, because his evidence was very contradictory with respect to the circumstances in which he left Lebanon, and it was not unreasonable to prefer written country conditions over the uncorroborated testimony of the applicant.
ANALYSIS
[10] Although country conditions are by necessity a compilation of hearsay upon hearsay, it is absolutely necessary to have some information in order to assess a claim. This falls within the province of the Board which is specialized in these matters. The Board cannot be faulted by a court for preferring some information over other information. One must also keep in mind that the panel, unlike this Court, had the advantage of having witnesses, rather than a transcript, before it (Takhar v. Canada (Minister of Citizenship and Immigration), [1999] FCJ No. 240 (QL)).
[11] Mr. Agha's counsel emphasizes what he considers to be errors in the decision below. However, as Joyal J. said in Miranda v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81:
It is true that artful pleaders can find any number of errors when dealing with decisions of administrative tribunals.
The question is whether an error is material to the decision reached. We have also been warned against overzealous, microscopic examination. See Annalingam v. Canada (Minister of Citizenship and Immigration) (2000), 6 Imm. L.R. (3rd) 316, Rivera-Velasquez v. Canada (Minister of Citizenship and Immigration), 2003 FC 1322 and Carillo v. Canada (Minister of Citizenship and Immigration), 2004 FC 548.
[12] A finding of fact made by the Board must stand unless it is patently unreasonable (Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.)).
[13] Mr. Agha relies upon Bastos v. Canada (Minister of Citizenship and Immigration), 2001 FCT 662, (2001), 15 Imm. L.R. (3d) 167, a decision of O'Keefe J. I do not think that case is of assistance. There, the Board found the applicant was not credible because she had more detail in her written PIF that in her oral testimony. The reverse holds true here. O'Keefe J. said at paragraph 27:
[...]It is not reasonable for a person to remember all the details that were written down in this case as the writing of the PIF was done by her lawyer, who took the information from an interpreter....
[14] In this case, Mr. Agha personally wrote out the PIF in Arabic, which was then translated. Bastos has no bearing on a failure to set out in a PIF the major reason for seeking asylum.
[15] I find no patently unreasonable error and so I must dismiss the application.
"Sean Harrington"
Judge
Ottawa, Ontario
September 3, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3349-03
STYLE OF CAUSE: FAWZI KHALIL AGHA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 31, 2004
REASONS FOR ORDER : HARRINGTON J.
DATED: SEPTEMBER 3, 2004
APPEARANCES:
Patrick-Claude Carron FOR APPLICANT
Marie-Claude Paquette FOR RESPONDENT
SOLICITORS OF RECORD:
Alepin Gauthier Avocats FOR APPLICANT
Montréal, Québec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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