Docket: IMM-6202-10
Citation: 2011 FC 947
Ottawa, Ontario, July 28, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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RANDY GHANUOM
JOANA GHANUOM
REUVEN GHANUOM
RIMI GHANUOM
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Mr.
Ghanuom, his wife and their two children, claimed their refugee status based on
his fear of persecution in both Lebanon and Israel. Although he
and his wife are dual citizens, their children are only citizens of Israel.
Consequently, the member of the Refugee Protection Division, of the Immigration
and Refugee Board of Canada, who heard the matter first considered the basis of
fear of persecution should they be returned to Israel.
[2]
She
dismissed their claim, and so did not consider it necessary to assess the
situation in Lebanon. This is a
judicial review of that decision.
[3]
Mr.
Ghanuom fears Hezbollah in Lebanon because of his prior
involvement in the South Lebanese Army, considered to be pro-Israeli. In
Israel, he fears the Secret Service, the Mossad, who will harass and put
pressure on him because he refused to become an informant for them, because of
alleged links with sympathizers of the Hezbollah; he also fears mistreatment by
both Arabic Israelis, who consider them as traitors, and by Jewish Israelis
because of their Christian faith.
Issues
[4]
The
applicants raise two issues:
a. a lack of
procedural fairness; and
b. the decision
does not meet the reasonableness standard of review as described in Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[5]
If
the hearing was tainted with procedural unfairness, then it should be set aside
for that reason alone, as it is not up to this Court to speculate what the
outcome would otherwise have been (Cardinal v Kent Institution, [1985] 2
SCR 643, [1985] SCJ No 78 (QL)).
Procedural Unfairness
[6]
The
allegation of procedural unfairness arises from the fact that at the second of
three hearings the member stated that she had forgotten her notes from the
first hearing, and had to be reminded of exactly where they were in the
proceedings. There was no request for an adjournment at the time, and the
reasons do not give any hint of confusion on the member’s part. If necessary, it
was open for her to listen to the tape of the proceedings, as indeed the
applicants had done in their application for leave.
[7]
Applicants
cite the decision of Madam Justice Layden-Stevenson, as she then was, in Gondi
v Canada (Minister of
Citizenship and Immigration), 2006 FC 433, 147 ACWS (3d) 860, at
paragraph 17. However, I do not consider that decision helpful in that it deals
with a situation in which one could not have raised the lack of procedural
fairness until receipt of the decision.
[8]
In
my opinion, the hearing was not tainted by procedural unfairness.
Was The Decision
Reasonable?
[9]
The
member dealt with the various allegations and determined that they constituted evidence
of discrimination and harassment, but not persecution, even if considered
cumulatively.
[10]
One
allegation is that they were mistreated by neighbours who threw oil and coffee
on their clothes. Yet Mrs. Ghanuom testified that although the police were
called and arrived, they did not investigate because a neighbour declared that
it had been children who had spilled the oil. The member found there was not
much the police could have done in the absence of witnesses and with
contradictory versions of the incident. However, the fact that they answered
the claimant’s call and came to her house demonstrated an intention to act.
[11]
Mr.
Ghanuom alleged that he was unable to secure stable employment due to his
nationality and religion. Yet he was constantly employed while in Israel.
[12]
As
regards the children being physically assaulted and robbed by other children at
school and in the neighbourhood, the claimants did not previously mention
having complained about this treatment.
[13]
Apparently,
difficulty was experienced in finding a daycare for son Reuven, who suffers
from a speech impairment. However, the member was not satisfied that his
nationality and religion were the cause of the refusal to take him. There may well
have been a lack of appropriate resources.
[14]
Although
pressured by Mossad, Mr. Ghanuom was not physically mistreated and the member
considered that such treatment, however unpleasant, did not constitute
persecution.
[15]
The
panel’s view of persecution is fuelled by Ward v Canada, [1993] 2 SCR
689, [1993] SCJ No 74, a decision a Mr. Justice La Forest, at page 734:
"Persecution", for example, undefined in the Convention,
has been ascribed the meaning of "sustained or systemic violation of basic
human rights demonstrative of a failure of state protection”
[16]
The
findings of the RPD members are entitled to deference. As stated by Mr. Justice
Evans in Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35, [1998] FCJ No 1425 at
paragraph 14:
It
is well established that section 18.1(4)(d) of the Federal Court Act
does not authorize the Court to substitute its view of the facts for that of
the Board, which has the benefit not only of seeing and hearing the witnesses,
but also of the expertise of its members in assessing evidence relating to
facts that are within their area of specialized expertise. In addition, and
more generally, considerations of the efficient allocation of decision-making
resources between administrative agencies and the courts strongly indicate that
the role to be played in fact-finding by the Court on an application for
judicial review should be merely residual. Thus, in order to attract judicial
intervention under section 18.1(4)(d), the applicant must satisfy the Court,
not only that the Board made a palpably erroneous finding of material fact, but
also that the finding was made "without regard to the evidence": see,
for example, Rajapakse v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 649 (F.C.T.D.); Sivasamboo v. Canada
(Minister of Employment and Immigration), [1995] 1 F.C. 741 (F.C.T.D.).
See also Stein v “Kathy K”, [1976] 2
SCR 802, [1975] SCJ No 104 (QL) at page 807.
[17]
The
member’s findings and conclusions were not unreasonable and should not be
disturbed.
ORDER
THIS COURT
ORDERS that
1. The
application for judicial review is dismissed.
2. There
is no serious question of general importance to certify.
“Sean Harrington”
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