Date: 20050224
Docket: IMM-1560-04
Citation: 2005 FC 290
BETWEEN:
HATEM FRHAT
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
OVERVIEW
[1] This judicial review is resolved on an issue which arose in oral argument. Counsel for the Respondent was kind enough to make inquiries of the Immigration and Refugee Board (IRB) to ensure that the factual basis on which this matter turns are correct and that there were no inadvertent errors of a typographical or technical nature. While the case goes against counsel's client, the Court appreciates Mr. Butterfield's cooperation and professionalism.
BACKGROUND
[2] The Applicant, a male citizen of Lybia, claimed fear of persecution from his politically powerful stepfather - a man, the Applicant says, who murdered the Applicant's mother. He feared being returned to Libya.
[3] In an oral judgment, the Member of the IRB dealt with the Applicant's contention that failed asylum seekers are persecuted. The Member referred to the absence of documentary evidence other than an Amnesty International report concerning the practice of punishing failed asylum seekers.
[4] In rejecting this as a valid concern, the Member said:
In my opinion, if this was going on in Libya to any great extent, there would be more documentary evidence on it, especially from either Human Rights Watch, U.S. State Department, British Home Office, those other organizations that monitor Libya quite closely.
[5] The Applicant has raised a number of challenges to the IRB's decision which do not need to be addressed.
[6] The above quote suggests that the Member consulted the other documentary sources and found them to have no evidence of persecution of returning failed asylum seekers.
[7] Having reviewed the RPD Information Package, which contains the materials available to the Member, neither Human Rights Watch nor British Home Office documents are listed. It has been confirmed that their absence is not a typographical error nor that a page of the index is missing.
[8] While the IRB is entitled to varying degrees of deference in its decisions, it is a deference which must be earned. In this case the Court could not determine the basis upon which the Board reached its conclusion on the issue of returning asylum seekers.
[9] Whether the omission of the documents and of their listing was an error and the Member did in fact have them available is impossible to discern. If a document is relied upon by the IRB it must be available to be examined by both an applicant and the Court. Failure to have it available and to establish that it says what it says (or does not say) is an error of law. To be clear, the Court is not suggesting that the Member did not consult those documents, just that the record does not confirm that act.
CONCLUSION
[10] For this reason, this application for judicial review will be granted and the matter remitted to the IRB for a new determination by a differently constituted panel.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1560-04
STYLE OF CAUSE: HATEM FRHAT v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 26, 2005
REASONS FOR ORDER: Phelan J.
DATED: February 24, 2005
APPEARANCES:
Mr. Micheal Crane FOR THE APPLICANT
Mr. Michael Butterfield FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Micheal Crane
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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