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                                                                                                            Date: 19990914

                                                                                                            Docket: IMM-6813-98

MONTRÉAL, QUEBEC, THE 14th DAY OF SEPTEMBER 1999

PRESENT:                  THE HONOURABLE MR. JUSTICE DENAULT

BETWEEN:                                     MOHAMED AGGUINI

                                                                                                                                          Applicant

                                                                         AND:

                                                    MINISTER OF CITIZENSHIP

                                                           AND IMMIGRATION

                                                                                                                                       Respondent

            Application under section 82.1 of the Immigration Act for judicial review of a decision dated December 17, 1998, in docket M97-09473, by Danielle Debbas and Ghislain Lavoie, members of the Immigration and Refugee Board.

                                                                       ORDER

            The application for judicial review is allowed, the Refugee Division decision dated December 15, 1998, is set aside, and the matter is referred back to a different panel of the Immigration and Refugee Board for rehearing.

                                                                                                                                  Pierre Denault           

                                                                                                                              Judge

Certified true translation

Peter Douglas


                                                                                                            Date: 19990914

                                                                                                            Docket: IMM-6813-98

PRESENT:                 THE HONOURABLE MR. JUSTICE DENAULT

BETWEEN:                                     MOHAMED AGGUINI

                                                                                                                                          Applicant

                                                                         AND:

                                                    MINISTER OF CITIZENSHIP

                                                           AND IMMIGRATION

                                                                                                                                       Respondent

                                                       REASONS FOR ORDER

DENAULT J.

[1]         This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board that the applicant, a citizen of Algeria, is not a Convention refugee.

[2]         According to the record, the applicant, a French teacher at a primary school in Algeria, based his refugee claim on the allegation that he was attacked by individuals after a parent-teacher meeting on August 7, 1997, during the school summer holidays. They apparently called him an enemy of God, beat him up and warned him that if he dared teach when school resumed, he would be dead. Aided by passersby, he was treated in hospital and regained consciousness. A few weeks later, he went to Spain by boat, then to Portugal, where he stayed for a month before coming to Canada; nine days after arriving, he claimed refugee status.


[3]         The main reason for the decision was that the panel did not believe there had been a meeting on August 7, 1997, and consequently that the applicant had been attacked afterward. Thus the applicant was found not credible.

[4]         In fact, the panel did not believe that a meeting called by posting notice ten days beforehand, during the school holidays, could have taken place, since the school was closed for the holidays. However, the evidence showed that notice had been posted not ten days before the meeting but on July 4, 1997, ten days before the teachers' holidays, which started shortly after the students' holidays.

[5]         Nor did the panel believe the applicant's description of his attackers' dress and that none had a beard though he described them as Islamists. The panel thus found that the applicant was [TRANSLATION] "not credible in his description, based on the Panel's specialized knowledge." This reasoning by the panel warrants two comments: (1) the applicant described his attackers as Islamists not because they were clean-shaven but because they accused him of being an "enemy of God" and because of the warning they gave him; (2) it was perverse and capricious to infer that a clean-shaven individual could not be an Islamist.

[6]         In fact, in my opinion, the panel could not take notice of that fact under subsections 68(4) and (5) of the Immigration Act without notifying the applicant of its intention and affording him a reasonable opportunity to make representations with respect thereto. In Zena Bula v. SEC, (A-329-94, June 19, 1996), concerning the scope of subsections 68(4) and (5), the Federal Court of Appeal said that:

More specifically, we can only approve the judge's comment that it is of the very essence of the role of the tribunal that hears the witnesses to rule on their credibility, and we think it is not only normal but inevitable that in doing so the members will be influenced by the experience they may have acquired in the exercise of their duties. As long as it involves only experience they have acquired and not specific information, subsections (4) and (5) of section 68 of the Act are not at all involved. [Emphasis added.]

In the case at bar, I am of the view that it was unreasonable for the panel to find the applicant not credible [TRANSLATION] "based on the Panel's specialized knowledge" because none of his attackers, described as Islamists, had a beard. In addition, that finding could not have been based on experience the Board members had acquired in hearing Algerian claims but rather on specific information; the applicant was entitled to be notified of the panel's intention to make that finding, and to make representations with respect thereto.

[7]         Given the Court's conclusion in the previous paragraphs, it is in my view pointless to elaborate further on the other grounds the applicant raised in his application for judicial review. Suffice it to say that in my opinion, the Board members' negative comments on the applicant's hair colour in the case at bar are out of place and unnecessary, and merely aim to undermine his credibility, even though his identity was not otherwise questioned at all.

[8]         For these reasons, the application for judicial review is allowed. In the case at bar, there is no serious question of general importance to certify under subsection 83(1) of the Immigration Act.

                                                                                                                                  Pierre Denault              

                                                                                                                        Judge

MONTRÉAL, QUEBEC

September 14, 1999

Certified true translation

Peter Douglas


                          Federal Court of Canada

                                   Trial Division

Date: 19990914

Docket: IMM-6813-98

Between:

                            MOHAMED AGGUINI

                                                                              Applicant

                                           AND

                      MINISTER OF CITIZENSHIP

                             AND IMMIGRATION

                                                                           Respondent

                         REASONS FOR ORDER

           


FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:                              IMM-6813-98

STYLE OF CAUSE:                    MOHAMED AGGUINI

                                                            Applicant

AND

MINISTER OF CITIZENSHIP

                                                     AND IMMIGRATION

                                                                                    Respondent

PLACE OF HEARING:             MONTRÉAL, QUEBEC

DATE OF HEARING:               September 13, 1999

REASONS FOR ORDER OF THE HONOURABLE DENAULT J.

DATED                                       September 14, 1999

APPEARANCES:

Stéphanie Valois                    for the applicant

Martine Valois                    for the respondent

SOLICITORS OF RECORD:

Stéphanie Valois                    for the applicant

Montréal, Quebec

Morris Rosenberg

Deputy Attorney General of Canada

Montréal, Quebec              for the respondent

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