Date: 20001023
Docket: IMM-4959-99
Between:
HAKIM CHELLELI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated September 22, 1999, determining that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C., 1985, c. I-2.
[2] The applicant, a citizen of Algeria, left that country on September 27, 1994. After spending time in Spain, France and England, he arrived in Canada on February 3, 1999. At the hearing before the Refugee Division, the applicant stated that he left his country because he refused to perform military service.
[3] The Board's decision seems to be based essentially on the applicant's lack of credibility, as is particularly evident from the following observations in the decision:
| - It is not plausible that the police would have opened fire on a government work site; the Board found it implausible that government employees would shoot at each other. |
| - After leaving his country, the applicant did not act like someone who fears persecution in his country; he lived in Spain and France for some time without ever claiming refugee status in those countries. |
| - The applicant also waited more than a month before claiming refugee status in England; that delay contradicts his subjective fear; moreover, after his appeal was denied, he waited almost two years before leaving England to seek protection in another country. This is another delay that undermines his subjective fear. |
| - He admits he lied in England about the date he left his country; he neglected to mention his fear of military service and contends that he did not know that would help his claim, but he mentioned it once he arrived in Canada. |
[4] After reviewing the evidence and hearing counsel for the parties, I am not satisfied that the Refugee Division, a specialized tribunal, could not reasonably have made the findings that it did on this point (see Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315).
[5] The perception on the part of the Refugee Division that the applicant is not credible effectively amounts to a finding that there is no credible evidence to justify his refugee claim (see Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238). Accordingly, the Board would have been justified in not believing that the reason the applicant wanted to be granted refugee status was because he did not want to perform his military service in Algeria. However, the Board considered the issue of military service and found that the applicant's fear of being killed does not in itself necessarily make him a conscientious objector, and that he was required to obey a law of general application.
[6] On that point, I have reviewed the evidence in light of the applicable principles that were clearly stated by Mr. Justice MacGuigan, writing for the Federal Court of Appeal, in the leading case of Zolfagharkhani v. Canada (M.E.I.), [1993] 3 F.C. 540. At page 552 of that decision, some general propositions are set forth relating to the status of an ordinary law of general application in determining the question of persecution:
| (1) The statutory definition of Convention refugee makes |
the intent (or any principal effect of) an ordinary law of general application,
rather than the motivation of the claimant, relevant to the existence of
persecution.
| (2) But the neutrality of an ordinary law of general application, vis-à-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required. |
| (3) In such consideration, an ordinary law of general application, even in non-democratic societies, should, I believe, be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory. |
| (4) It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground. |
[7] In the circumstances, I am also not satisfied that the Board erred in finding that the applicant was not justified in evading military service because he was required to obey a law of general application in Algeria.
[8] In conclusion, the fact that Exhibits P-11 and P-12 were not mentioned in the decision does not appear to me to be a decisive factor, in the circumstances: the first exhibit in fact consists of case law and the second is a description of the facts; having regard to the
documentary evidence as a whole, those facts are not of sufficient weight to have influenced the
decision.
[9] For all these reasons, the application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
October 23, 2000
Certified true translation
Mary Jo Egan, LLB
Date: 20001023
Docket: IMM-4959-99
Ottawa, Ontario, the 23rd day of October 2000
Present: The Honourable Mr. Justice Pinard
Between:
HAKIM CHELLELI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of the Convention Refugee Determination Division dated September 22, 1999, determining that the applicant is not a Convention refugee is dismissed.
YVON PINARD
JUDGE
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT FILE NO.: IMM-4959-99 |
| STYLE OF CAUSE: HAKIM CHELLELI v. MCI |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: AUGUST 31, 2000 |
REASONS FOR ORDER OF PINARD J.
APPEARANCES:
| DENIS GIRARD FOR THE APPLICANT |
| MICHEL PÉPIN FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| DENIS GIRARD FOR THE APPLICANT |
| Morris Rosenberg FOR THE RESPONDENT |
Deputy Attorney General of Canada
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