Date: 20031001
Docket: IMM-5889-02
Citation: 2003 FC 1136
Toronto, Ontario, October 1st, 2003
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
HASHIM ABDALAAL
NAIMA ABDEL WAHAB
HANA HASHIM MOHAMED
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Abdalaal, a sixty year old Sudanese, claimed Convention refugee status on the basis of perceived political opinion. His wife and daughter based their claims on that of Mr. Abdalaal. They also claim to be persons in need of protection from danger of torture, risk to life, cruel and unusual treatment or punishment if they return to Sudan. The Refugee Protection Division of the Immigration and Refugee Board (RPD) denied their claims essentially on the basis that there was insufficient credible or trustworthy evidence to support them. The applicants seek judicial review of that decision and I have determined that the application should be allowed.
[2] Mr. Abdalaal alleges that he has long been a political opponent of both the current and former repressive regimes in Sudan. He was a member of the Communist party until 1976 when he became disillusioned with the party factions and became an independent, serving trade unions. After the coup of 1989, when Islamic fundamentalists overthrew the democratically elected government and disbanded trade unions, he was involved in secret meetings where discussions of democracy and opposition to the regime took place. He also claims to have participated in the organization of demonstrations and attempts to mobilize trade unionists and other opponents of the regime. In 1997, he says that his fourteen year old son was forced to join the Popular Defence Forces (PDF), but escaped from the camp. After Mr. Abdalaal managed to get him to Yemen, Mr. Abdalaal was detained by the security forces and held for two days in harsh conditions. He was told that the regime was aware of his activities and was threatened. In 1998, after a number of PDF trainees were killed during an attempted escape, Mr. Abdalaal participated in a mass protest, was arrested and held for seven days during which time he claims to have been beaten. His Personal Information Form (PIF) also states that he was held in preventative detention in December, 1999 and January 2000 because the regime was attempting to avoid unrest for Independence Day.
[3] An engineer by profession, Mr. Abdalaal is a specialist in the refurbishing and repairing of industrial boilers. He did some work in 2000 for a private factory, owned by a regime supporter, and was later approached by the same factory owner, along with military representatives, who requested that he perform similar work on two government-owned factories, beginning in April, 2001. He did not want to do anything to assist the regime in its campaign against the people (primarily non-Muslim) in the south of Sudan and he made preparations to leave before he was to begin the work. He fled Sudan with his wife and daughter on March 21, 2001. He travelled to Canada via the United States where he stayed in Washington for ten days while awaiting transportation to Canada.
[4] The applicants' primary argument is that there was a breach of procedural fairness and natural justice. During oral argument, the applicants' counsel candidly stated, and I agree, that the breach was inadvertent on the part of the RPD. The difficulty arises as a result of a request by the board, at the outset of the hearing, for the applicants to address only the events that occurred from 1998 onward. Specifically, the board member stated, (page 7 of the transcript), "So, counsel, for the purposes of this hearing, I would like to just establish a bit of his political background and start from May of ninety-eight, which is paragraph 11 [of the PIF]". The applicants do not take issue with the approach of the RPD in this regard. When the refugee protection officer (RPO), in cross-examination, asked a question related to paragraph 7 of the PIF, the board member intervened and said, (page 42 of the transcript), "Okay. I have to point out...since counsel was not given an opportunity for direct examination of that part of the PIF, I don't think it's fair to bring it up later." Again, the applicants have no difficulty with that approach.
[5] The problem, from the applicants' perspective, is that the RPD, having narrowed the scope of the hearing, then referred to pre-1998 evidence contained in the PIF and relied upon it to draw negative conclusions with respect to Mr. Abdalaal's credibility and to arrive at implausibility findings. Mr. Abdalaal, then, was in the unenviable position of not being able to offer explanations. Well aware of the inherent difficulties in attacking the credibility findings of the RPD, the applicants argue that the approach taken by the board and the emphasis placed by it on the pre-1998 events, without them being appropriately addressed at the hearing, resulted in a misinterpretation, misunderstanding and ignoring of evidence which led to a negative credibility finding and in turn to a negative decision. In short, after having indicated at the hearing that pre- 1998 events were irrelevant for purposes of the hearing, the RPD later attached considerable significance to the pre-1998 evidence contained in the PIF without affording a full opportunity for questioning and cross-examination regarding it. That is where the breach of fairness arises.
[6] I agree with the applicants' position and I reject the respondent's argument to the contrary that the findings referred to were not material to the overall decision. It is impossible to speculate as to what the result might have been, had the breach not occurred. It is clear that the RPD drew a negative credibility finding in relation to the 1998 incident by referring back to a 1997 incident. Similarly, it determined that it was implausible that Mr. Abdalaal would be released from detention in view of his earlier encounters. Most importantly, the RPD relied heavily on the earlier incidents in relation to its finding on the subjective component of Mr. Abdalaal's fear. In my view, it is not open to the board to narrow the scope of the hearing and indicate that pre-1998 events are irrelevant and then go on to rely on those very events in deciding the case. The board's approach constitutes a breach of procedural fairness and vitiates the decision. The application will therefore be allowed.
[7] Counsel posed no question for certification and I agree that this matter raises no serious question of general importance.
ORDER
IT IS HEREBY ORDERED THAT the application for judicial review is allowed and the matter is remitted back for redetermination before a differently constituted panel of the RPD.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5889-02
STYLE OF CAUSE: HASHIM ABDALAAL
NAIMA ABDEL WAHAB
HANA HASHIM MOHAMED
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: SEPTEMBER 30, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: OCTOBER 1, 2003
APPEARANCES BY: Mr. W. Lloyd MacIlquham
For the Applicants
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Randal Montgomery
Barrister and Solicitor
Toronto, Ontario
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20031001
Docket: IMM-5889-02
BETWEEN:
HASHIM ABDALAAL
NAIMA ABDEL WAHAB
HANA HASHIM MOHAMED
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER