Date: 19980121
Docket: IMM-4895-96
BETWEEN:
HADJ MOHAMMED-BELARBI,
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application pursuant to subsection 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2, for an order setting aside the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board which held that the applicant was not a Convention refugee.
[2] On November 2, 1995, Mr. Mohammed-Belarbi, a citizen of Algeria, claimed Convention refugee status by reason of his political opinion and membership in a particular social group. By decision dated November 28, 1996, the Refugee Division held that the applicant was not a Convention refugee, stating its reasons at p. 10 as follows:
| Compte tenu des motifs énoncés ci-dessus, et après un examen attentif de la preuve, nous concluons qu'il n'existe pas suffisamment de preuve crédible ou digne de foi en ce qui a trait aux éléments centraux de la revendication. Le seul fait d'avoir été membre du F.I.S. jusqu'à ce que le parti ait été interdit n'établit pas l'existence d'une possibilité sérieuse que le revendicateur soit persécuté en raison de ses opinions politiques imputées. Il est clair que, suite à l'interdiction du parti, le revendicateur a cessé ses activités au sein du parti. Il a maintenu son emploi comme professeur au lycée. Selon la preuve documentaire, des milliers d'Algériens supportaient le parti F.I.S. durant les élections. Selon la documentation, les forces de sécurité persécutent plusieurs Algériens soupçonnés d'être des éléments extrémistes-terroristes du F.I.S. La preuve documentaire ne supporte pas la conclusion selon laquelle tous les Algériens qui supportaient le parti F.I.S. durant les élections seraient présentement, cibles par le régime. Le fait que le demandeur fut relâché le 1er août 1994 confirme qu'il n'était pas voulu par les autorités. Eu égard à la croissance des actes de terrorisme au moment donné, il est raisonnable de croire qu'aucune intervention par le colonel, oncle de son ami Yebbal Rachid, aurait procuré la libération d'un collaborateur des extrémistes en août 1994. |
[3] The applicant now seeks to have that decision set aside on the grounds the Board erred in law by ignoring evidence properly before it and by failing to have regard to a number of key factors on which his claim for Convention refugee status was based.
[4] It is true that the failure of the Board to summarize or refer to all of the evidence which was before it in its written decision does not, in and of itself, constitute a reviewable error which would warrant setting the decision aside. As stated by the Federal Court of Appeal in Hassan v. M.E.I. (1992), 147 N.R. 317 at p. 318, "the fact that some of the documentary evidence is not mentioned in the Board's reasons is not fatal to its decision".
[5] In the present case however, the Board makes no reference whatsoever to the extensive documentary evidence which was before it relating to the applicant's fear of persecution at the hands of the Algerian authorities as a suspected Islamic extremist member or sympathizer, and his fear of persecution at the hands of the Islamic extremists as a teacher. The Board's failure to make some comment on this material leads to the inference that it made its decision without regard to the evidence before it. As stated by this Court in Bains v. Minister of Employment and Immigration (1993), 20 Imm. L.R. (2d) 296 at p. 300:
| I agree that it is within the purview of the panel to review the documentation and accept or reject the information, however, the Refugee Division cannot simply ignore the information . . . The Refugee Division, in my view, is obligated, at the very least to comment on the information. If the documentation is accepted or rejected the applicant should be advised of the reasons why, especially as the documentation supports the applicant's position. |
[6] Furthermore, the Board's decision leaves significant doubt as to whether it appreciated or even gave consideration to fundamental and vital aspects of the applicant's claim. For example, the Board's decision does not refer to the applicant's arrest and imprisonment for a period of forty-nine days, during which time, he was tortured and repeatedly interrogated about Islamic extremist attacks against Algerian military bases. Nor does the decision make reference to the applicant's subsequent arrest and detention for fourteen days beginning on July 18, 1994, because it was believed that he wanted to rent an apartment to lodge Islamic extremists. Finally, the Board's decision does not make reference to the fact that Islamic extremists target teachers because they work for the state.
[7] These factors are of critical importance with respect to the applicant's claim of fear of persecution at the hands of the authorities as a suspected Islamic extremist member or sympathizer as well as his fear of persecution at the hands of the Islamic extremists as a suspected opponent to their cause and a supporter of the Algerian government by virtue of being a state-employed teacher. Given the crucial significance of this evidence, it was incumbent upon the Board to clearly state its findings with respect to the credibility of that evidence. This was the approach adopted by the Federal Court of Appeal in Ababio v. Canada (Minister of Employment & Immigration) (1988), 5 Imm L.R. (2d) 174 at p. 176:
| The attorney for the respondents has based her defence of the board's decision on the obvious "fabrication" of some of the applicant's assertions and has tried to convince us that, even if the board did not openly contest the truthfulness of his testimony, it did at least show its disbelief in veiled terms. We are not convinced. In our opinion, if the board believed the applicant's version of the facts, it has not given sufficient reasons for dismissing his claim; if, on the other hand, it did not believe him and based its conclusion on that point, it should have said so. |
(emphasis added)
[8] I am satisfied therefore that the proper course to follow is to set the Board's decision aside and to refer the matter back to a newly constituted panel for rehearing and redetermination.
[9] For these reasons, the application is allowed.
JUDGE
OTTAWA, Ontario
January 21, 1998