Federal Court Decisions

Date: 19971212

Docket: IMM-12-97

BETWEEN:

     KAMAL AHMAD AHMAD

     GHALA NAIM AHMAD,

     Applicants,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

DUBÉ J:

[1]      This application is for the review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") dated December 3, 1996, in which it was decided that the applicants are not Convention refugees.

[2]      Dr. Ahmad and his wife are stateless Palestinians whose former habitual residence was the section of the Occupied Territories held by Israel, known as the West Bank.

[3]      In its credibility finding, the Board concluded that the applicants did not have a well-founded fear of persecution on three grounds. First, the applicants delayed their departure after having received the appropriate visas. Secondly, the Board did not believe the applicants were in hiding as Dr. Ahmad, a well-known physician, continued to attend at his clinic on at least ten occasions and would have been easily discovered by the Fatah. Thirdly, the Board found that the applicants' fear of persecution was not warranted in the light of the documentary evidence.

[4]      The jurisprudence in the matter is to the effect that the onus is on the applicant to refute a Board's finding on credibility and that the onus is a heavy one. The applicant must be in a position to show that the conclusions reached by the Board were perverse or capricious or so unreasonable that the Court is duty bound to set the decision aside¹. In the instant case, the grounds for lack of credibility were reasonable ones. It cannot be said that the Board was capricious or unreasonable in rejecting the explanations given by the applicants.

[5]      After the Board hearing, but before the Board's decision in this matter, counsel for the applicants faxed to the Board a letter from the Israeli Information Centre for Human Rights in the Occupied Territories to the effect that the circulars considered by the Board "were put out by one group in the name of another in order to mislead" and that "the publication of this or any other circular therefore did not remove dangers from persons mentioned in the circular". Counsel for the applicants submits that the Board appears not to have received the fax in question and therefore that the applicants did not benefit from a fair and complete hearing.

[6]      Indeed, that post hearing document never found its way to the Board. However, there is a duty upon counsel to ensure that post hearing documents, not expected by the Board, are in fact received by the Board. The situation would have been totally different had the documents been filed in the course of the hearing or had the Board authorized counsel to file other evidence after the hearing. At a minimum, counsel ought to have ensured that the fax, for which she received no acknowledgment from the Board, had in fact been received. In any event, the first two grounds were amply sufficient to support the Board's findings of lack of credibility.

[7]      Consequently, this application for judicial review is denied.

    

     Judge

OTTAWA, ONTARIO

December 12, 1997

__________________

¹      See Ismaeli v. M.C.I., IMM-2008-94, April 11, 1994 (F.C.T.D.).