Date: 20060927
Docket: IMM-7571-05
Citation: 2006 FC 1145
Ottawa, Ontario, September 27, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
HUSSEN NAYEF ELCHARITI, DIMA
THINE,
NOURALDEAN HUSS ELCHARITI and HUSSEN AYA
ELCHARITI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Hussen
Nayef Elchariti (the Principal Applicant) is a citizen of Syria who
converted from the Druze faith to Muslim. He bases his Convention refugee claim
on an alleged fear of persecution by reason of his Muslim religion. The alleged
agents of persecution are members of the Druze faith. In a decision dated November 23,
2005, a panel of the Refugee Protection Division of the Immigration and Refugee
Board of Canada (the Board) determined that Hussen Nayef Elchariti, his wife
(Dima Thine) and children (Nouraldean Huss Elchariti and Hussen Aya Elchariti)
(collectively, the Applicants) were not Convention refugees. The Applicants
seek judicial review of the decision.
Background
[2] Although
raised in the Druze faith, the Principal Applicant converted to the Muslim
faith of his wife, Dima Thine, shortly after their marriage in 1996. He alleges
that he kept his conversion a secret from his family for fear of the consequences.
His family learned of the conversion in 1998. In October 1997, the Principal
Applicant and his wife came to the United States where their son,
Nouraldean Huss Elchariti, was born in 1998 and their daughter, Hussen Aya
Elchariti, in 2002.
[3] The
family returned to Syria in 1999 where, according to the Principal
Applicant’s Personal Information Form (PIF) Narrative, he received visits and
death threats from his family members and the Druze community. He alleges that,
in March 2004, the Syrian security services visited Dima Thine’s aunt to inform
her that the Principal Applicant was wanted by the Syrian government.
[4] The
Applicants returned to the United States from Syria on September
9, 1999. On March 12, 2004, Mr. Elchariti was convicted of identity fraud in
the United
States.
On April 6, 2004, the Applicants arrived in Canada, after being refused their
asylum claim in the United States, and claimed Convention refugee status in Canada on April 6,
2004.
Issues
[5] The
Applicants raise the following issues:
- Are the gaps in the
transcript serious enough to constitute a breach of natural justice?
- Did the Board
breach the rules of natural justice by failing to advise the Applicants
that it would rely on the submissions of the Minister?
- Was the decision
made in a perverse or capricious manner and without regard for the
evidence before it?
Board Decision
[6] The Board
found that the Principal Applicant and his wife did not have a well-founded
fear of persecution. Having read the decision, I note that the Board’s reasons
describe the following key points:
- According
to written submissions made by the Minister, at the Port of Entry (POE),
the Principal Applicant failed to disclose his 2004 conviction for
identity fraud in the United States or that he was on probation at the
time he came to Canada or that he had
been expressly told not to travel by his probation officer. The Minister
submitted that the Principal Applicant’s credibility was undermined by
both the existence of the criminal record and his failure to disclose this
information at the POE.
- Contrary
to the assertions of the Principal Applicant that the punishment for Druze
converts to the Muslim faith sometimes includes death, the Board preferred
documentary evidence that Druze who married non-Druze women were
excommunicated rather than killed.
- The
Board considered the Applicants’ delay in claiming asylum in the United
States.
Given the Principal Applicant’s alleged fears, it was not credible that
the Applicants did not immediately file for protection in the United
States.
- In spite
of the fact that the hearing was adjourned to allow the Applicants to
obtain the original arrest warrant allegedly received by his aunt in Syria, the
document was not produced.
[7] For the
reasons that follow, I am not persuaded that the decision should be overturned.
Analysis
Issue #1:
Transcript Gaps
[8] In oral
submissions before me, the Applicants raised concerns about the transcript from
the first day of the hearing. In a letter forwarded with the first volume of
the transcript, the transcriber noted that “there are many inaudible sections
in this transcript due to the claimant not being on a mike; he was also very
soft spoken and very difficult to hear”. A review of the first volume shows
that there are many spots containing the note “inaudible”. The Applicants argue
that these gaps make it impossible for the Court to adjudge this application. I
do not agree.
[9] While I
acknowledge that there are many such gaps, almost all of the omissions appear
in the middle of a sentence or comment by the Principal Applicant. This is not
a case where whole sections of testimony are missing. The meaning of the
sentences containing the inaudible sections is readily ascertainable. Further,
in my view, the inaudible words or phrases are not of a nature that fills in
omissions from or changes the Principal Applicant’s testimony.
Issue #2:
Minister’s Submissions
[10] Pursuant to
s. 25(1) of the Refugee Protection Division Rules, SOR/2002-228, the
Minister participated in the hearing by filing a Notice of Intent to
Participate. In the Notice, the Minister advised that he would not attend the
hearing and provided written submissions related to the POE officer’s
interaction with the Principal Applicant. At the hearing, the Board raised the
submission with the Principal Applicant. The focus of the discussion at the
hearing was on the existence of and facts surrounding the 2004 identity fraud conviction.
During the hearing, the Board did not question the Principal Applicant on the
facts alleged that he had failed to advise the officer of his conviction, that
he was on probation and that he had been requested not to travel. In the
decision, the Board referred to the Minister’s submissions, including both the
existence of the convictions and the allegations that the Principal Applicant
had been reluctant to be forthcoming with complete information and had misled
the examining officer at the POE. The Board “weighed this evidence with other
credibility issues”.
[11] From this
final statement by the Board on the Minister’s submissions, it is unclear to
what extent the submissions were relied on by the Board. For purposes of this
analysis, I have assumed that the Board concluded that the Principal
Applicant’s behaviour at the border – in addition to the existence of a
conviction in the United States – undermined the credibility of the
Principal Applicant.
[12] The
Applicants rely on Siloch v. Canada (Minister of Employment
and Immigration), (1993) 18 Imm. L.R. (2d) 239 at 243-244 (C.A.), for the
principle that a denial of a right to a fair hearing must always render a
decision invalid. In essence, the Applicants argue that the questions and
comments of the Board that addressed only the conviction itself made it unfair
for the Board to then rely on the other aspects of the Minister’s submissions.
This, they argue, is a breach of natural justice. Once again, I do not agree.
[13] The
Minister’s submissions formed part of the record at the Board hearings. The
Board made numerous references to the Minister’s submissions. Although the
focus of Board questions was on the background identity fraud conviction, this
does not mean that the Principal Applicant’s behaviour at the POE was “off the
table”. In my view, it was self-evident that the entire substance of the
submissions was an issue at the hearing. It is illogical to believe that the
Principal Applicant’s actions at the POE would not be of concern to the Board.
It was open to the Applicants’ counsel to lead evidence from the Principal
Applicant to contradict the information that was contained in the Minister’s
disclosure concerning the occurrence at the POE; this was not done. This is not
a case where the Board, in its decision, relied on information that was not
contained in the record or that was not referred to in the hearing. On these
facts, there was no breach of natural justice.
Issue #3: Board’s
Findings on Credibility
[14] The balance
of the Applicants’ submissions relate to the Board’s overall finding of
credibility. In the Applicants’ submission, the Applicants submit that the
Board erred:
- in
finding the Principal Applicant’s reasons for returning to Syria, after
the birth of his son in the United States, not credible;
- in
ignoring evidence from family members that demonstrated that his life was
at risk;
- in
making a negative credibility finding because the Applicants failed to
provide the original copy of the arrest warrant;
- by
ignoring documentary evidence on the treatment of Druze converts;
- in
finding that the Principal Applicant was not at risk to his life or of
torture or cruel or unusual treatment or punishment due to the lack of any
medical evidence of any attack, thereby applying too high a test for
persecution; and
- in
ignoring the evidence for why they delayed in making a refugee claim in
the United
States.
[15] The decision
of the Board on the lack of credibility is subject to the highest standard of
review – that of patent unreasonableness. As stated in Zenunaj v.
Canada (Minister
of Citizenship and Immigration), [2005] F.C.J. No. 2133 (F.C.) (QL) at para.
22, “a patently unreasonable decision is one that is ‘clearly irrational’ or ‘evidently
not in accordance with reason’, so flawed that no amount of curial deference
can justify letting it stand”.
[16] On this
standard, I have reviewed the Board’s decision and the evidence before the
Board in light of each of the alleged errors.
[17] The Board is
entitled to weigh and reject the explanations of the Applicants as to both their
reasons for their return to Syria in 1998 and as to the delay in making a
refugee claim. Given the record in this case, I can see nothing perverse about
either of these conclusions. At the root of both these conclusions was the lack
of an objective fear. Although not expressed by the Board as clearly as it
could have been, the Board concluded that returning to Syria for the completion
of medical studies was evidence that the Principal Applicant’s fear was not
genuine. This is not an unreasonable inference. A similar adverse inference was
drawn with respect to the Applicants’ failure to make a timely claim for
protection in the United States. When weighed in the light of an alleged
fear of death for converting to the Muslim faith, failure to make an early
claim undermines the credibility and well-foundedness of that fear.
[18] In his
affidavit for this application, the Principal Applicant explains in
considerable detail his return to Syria in 1998 and his delay in claiming in
the United
States.
The problem is that much of this information was not provided to the Board;
these explanations are simply not part of the record. Based on the information
and testimony that was before the Board on these issues, I am satisfied that
the Board’s conclusions were not unreasonable.
[19] In its
reasons, the Board refers to the fact that the Principal Applicant was never
assaulted by any family members or “hostile agents”. The Applicants rely on Salibian
v. Canada (Minister of Employment and Immigration), [1990]
3 F.C. 250 at 258 (C.A.), for the principles that:
- the
[Convention refugee] applicant does not have to show that he had himself
been persecuted in the past or would himself be persecuted in the future; and
- the
[Convention refugee] applicant can show that the fear he had resulted not
from reprehensible acts committed or likely to be committed directly
against him but from reprehensible acts committed or likely to be
committed against members of a group to which he belonged.
[20] By referring
to the lack of physical attack, the Applicants submit that the Board applied
too high a standard for persecution. While I agree completely with the
principles set out above, I do not agree with the Applicants’ interpretation of
the decision. In my reading of this section of the decision, the Board was
simply stating another fact that, when considered together with the documentary
evidence concerning Druze practices, supported the Board’s finding. There is no
error.
[21] The
Applicants relied on the existence of an arrest warrant that had been provided
to the Principal Applicant’s aunt in 2004. Only an e-mailed copy of the warrant
was provided. During the first day of hearings, the Board expressed the wish to
see the “original” of the warrant or summons that was in the possession of the
aunt in order that the document could be authenticated. Reading the transcript,
I am satisfied that it was made clear to the parties that the Board was
referring to the copy of the warrant that had been served on the aunt and not
to the original that, obviously, would have been kept by the authorities. The
hearing was adjourned to provide the Applicants an opportunity to get that
document from the aunt. That was not done. Rather, the Applicants provided a
copy of a letter from a Syrian lawyer indicating that the “security
Authorities . . . hold the original paper of the order in the file of the
wanted person”. The lawyer continues by explaining that the aunt received a
copy of the summons. This, of course, was not what was asked for; the Board
wanted to see the copy of the document that had been provided to the aunt. In
light of the failure to provide “this key piece of evidence”, it was open to
the Board to conclude that it did not believe that there was an arrest warrant
for the Principal Applicant.
[22] I acknowledge
that the Board could have been more careful in making specific reference to the
documentary and other evidence that describes the treatment of converts by
Druze adherents. Nevertheless, having reviewed the evidence that was before the
Board, I am not persuaded that failure to mention every piece of contrary
evidence is a basis for overturning the decision in this case.
Conclusion
[23] In sum, I can
see no breach of natural justice and no error that would warrant the
overturning of the decision.
[24] Neither party
proposed a question for certification; none will be certified.
ORDER
This Court orders that:
- The
application for judicial review is dismissed; and
- No
question of general importance is certified.
“Judith A. Snider”
____________________________
Judge
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