Date: 20040630
Docket: IMM-3006-03
Citation: 2004 FC 924
BETWEEN:
EHAB ALHAJYOUSEF
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated March 26, 2003, that the applicant is not a Convention Refugee or a "person in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2] Ehab Alhayousef (the applicant) is a Palestinian alleging that he has a well-founded fear of persecution based on his nationality and his perceived political opinion. The applicant fears being killed by the Israeli Army and by members of the Al Aqsa Brigade.
[3] The IRB determined that the applicant is not a Convention refugee, as he was not credible because of many inconsistencies and implausibilities. The IRB also noted that the applicant's behaviour was inconsistent with his alleged fear.
[4] At the hearing before me, the verbal motion for confidentiality in this case by applicant's counsel was taken under advisement. This motion is dismissed because it should have been formally filed much earlier and because, in any event, the harm alleged is entirely speculative.
[5] Fundamentally, the applicant criticizes the panel's assessment of the facts. The IRB determined that it was implausible that the applicant had never informed his parents of his problems, considering their influential positions with the Palestine Liberation Organization for many years. Further, the IRB criticized the applicant for not having filed any evidence establishing that he was personally targeted by Israeli military authorities. The IRB also noted that the applicant communicated with his parents on a regular basis and that they had not had any problems since his departure, which indicates that the applicant was not particularly targeted by the members of the Al Aqsa Brigade. A careful review of the reasons of the decision as well as the hearing transcripts established that the IRB took into consideration the applicant's explanations about these inconsistencies and implausibilities, but that it simply found that they were unsatisfactory.
[6] The applicant pointed out that the documentary evidence relied on by the IRB in finding that many young people volunteered to participate in martyrdom operations had been prepared by a member of the Brigade and that the IRB disregarded documentary evidence regarding the beatings reserved by the Palestinian population for people identified as traitors. Even if it is true that the documentary evidence reports the violence inflicted by the Palestinians on those who are suspected to be traitors, the applicant did not establish that he had been suspected of being a traitor to the Palestinian cause.
[7] According to the applicant, the fact that the IRB does not refer to his motion to disqualify in its reasons is contrary to its duty to provide reasons and creates the impression of an apprehension of bias. I disagree. The IRB is merely bound to explain why the claim was refused, which it did well in this case (see Mehterian v. Canada (M.E.I.), [1992] F.C.J. No. 545 (F.C.A.) and Tekin v. Canada (M.C.I.), [2003] F.C.J. No. 506 (F.C.T.D.) (QL)). As the respondent submits, section 169 of the Act provides that the IRB need not give reasons for its interlocutory decisions, such as a decision on a motion to disqualify. A review of the hearing transcript indicates that the applicant's counsel objected to the fact that the member began to question the applicant before the applicant had made all his amendments to the Personal Information Form and to the fact that the member had not shown the identity card to the applicant before questioning him about it. The member responded to counsel's concerns in both cases, and there is nothing to establish that these two incidents created an appearance of bias by the IRB. With regard to the applicant's claim to the effect that there was an appearance of bias because the applicant had not been able to consult the file of the Canadian Embassy, in my opinion this allegation is also unfounded. It is worthy of note that the IRB confronted the applicant with the information in this record of his application for a student visa and that the applicant was able to respond to the member's concerns. In Committee for Justice and Liberty et al. v. Canada (Energy Office), [1978] 1 S.C.R. 369, the Supreme Court of Canada developed the test applicable in matters of reasonable apprehension of bias at page 394:
. . . the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.. . . that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."
[8] Furthermore, in Arthur v. Canada (Attorney General), [2001] F.C.J. No. 1091, the Federal Court of Appeal stated the following:
[8] . . . An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard. . . .
[9] Applying these principles to this case, it would be appropriate to dismiss the applicant's allegation of bias.
[10] Finally, the IRB noted that the applicant had had a passport since November 18, 2000, that he obtained a Canadian visa on December 18, 2001, after having taken all the steps to come study in a institution of higher education in Canada, and that nevertheless the applicant waited another five months before leaving his country, without claiming refugee status when he arrived in Canada. According to the IRB, these delays undermine the credibility of his subjective fear. According to the case law of this Court, such a delay is significant evidence of whether the alleged fear of persecution is founded and the IRB could also find that there was a lack of credibility of the applicant's subjective fear (Ilie v. Canada (M.C.I.), [1994] F.C.J. No. 1758 (F.C.T.D.) (QL)). In this case, the IRB did indeed take into account the applicant's explanations but dismissed them. In my view, the IRB could then reasonably find that the applicant's behaviour was inconsistent with his alleged subjective fear.
[11] Although I myself would have assessed certain facts differently - including the matter of the date of the applicant's first meeting with Abu Al-Haija and the matter of the frequency of his visits to the Cultural Centre of the Al Ama'ri camp - in my view, generally speaking, the decision of the specialized tribunal, the IRB, is based on serious evidence. Further, as there was no other error in law established, the intervention of this Court is therefore not warranted.
[12] Accordingly, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
June 30, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3006-03
STYLE OF CAUSE: EHAB ALHAJYOUSEF v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 10, 2004
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: June 30, 2004
APPEARANCES:
Denis Girard FOR THE APPLICANT
Sherry Rafai Far FOR THE RESPONDENT
SOLICITORS OF RECORD:
Denis Girard FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario