Date: 20041101
Docket: IMM-5420-03
Citation: 2004 FC1537
OTTAWA, ONTARIO, NOVEMBER 1, 2004
PRESENT: THE HONOURABLE JUSTICE MICHAEL PHELAN
BETWEEN:
NIDAL HASAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
Introduction
[1] A single member of the Immigration and Refugee Board (the "Board") rejected Mr. Hasan's application for refugee status and for protection. The Board, in rejecting the application, refused to admit as evidence more than 550 pages of documents, some of which relate to alleged targeting of young, male Palestinians by Israeli security forces in the Gaza Strip (Occupied Palestinian Territories). Mr. Hasan based his claim, in part, on the fact that he is a young, male Palestinian living in the Gaza Strip.
Background
[2] Hasan is a 21-year-old Palestinian whose family was expelled in 1948 from their hometown in Herbia and who moved into the Gaza Strip where they initially lived in a UN refugee camp.
[3] Hasan's oldest brother, Samir, was injured in 1982 by an Israeli attack on Beirut, Lebanon. Samir subsequently joined and was, at the time of the application, a member of the Palestinian Presidential Security Forces.
[4] Although Hasan was stopped and questioned by Israeli soldiers, his home (before it was destroyed by Israeli forces) was visited by Israeli soldiers who stole a picture of Samir; his brothers were arrested in order for Israelis to question and coerce information from the family about Samir, the Board found that neither Hasan nor his family were targeted because of family ties to Samir. The Board held that these acts, neither individually nor cumulatively, constituted persecution.
[5] There was also evidence that two of Hasan's cousins were killed by Israeli authorities; three of his mother's cousins met the same fate. A 10-year-old nephew was killed; a 15-year-old cousin was disabled by "damdam" bullets. All of these persons were male.
[6] There was evidence that Israeli forces fired on the family home and hit Hasan's 14-year- old brother in the eye. This brother was arrested and denied transportation for hospital services in Jerusalem, where his eye could have been saved. Evidence also indicated that Hasan's brothers had been beaten on numerous occasions.
[7] The Applicant's counsel, as part of the hearing process, attempted to introduce a 556-page "Disclosure Package" nine (9) days before the hearing, instead of twenty (20) days prior as required by the Rules. The Board rejected the argument that the Disclosure Package was in response to disclosure by the RPO of the DOS Report and, therefore, permitted to be filed only five (5) days prior to the hearing. The Board also held that the vast majority of the information was outdated, repetitious or already disclosed in the RPO packages. The Board did allow in as evidence four pages, five photos and a map.
Analysis
[8] Hasan challenges the Board's conclusion as to the admissibility of the Disclosure Package and the finding of an absence of persecution.
RE DISCLOSURE PACKAGE
[9] Within the Disclosure Package are a number of reports from various organizations attesting to the ill-treatment of Palestinian males, the severe measures taken against Palestinians, and the unlawful killings and other abuses directed against Palestinians by Israeli forces.
[10] These reports come from such traditionally accepted (for purposes of evidence) sources as Amnesty International. In addition, several reports emanated from Israeli sources such as the Israeli Information Centre for Human Rights in the Occupied Territories.
[11] In rejecting the admissibility of what is clearly relevant evidence, the Board paid particular attention to Rule 29, which sets out the 20-day and 5-day deadlines. The Board failed to pay particular attention, if any, to Rule 30 which gives the Board the discretion to admit documents filed outside the prescribed time. The relevant provisions read:
| 29. (1) Subject to subsection (2) and rule 30, hearings of the Court, other than pre-trial or dispute resolution conferences, shall be open and accessible to the public.
(2) On motion, the Court may direct that all or part of a proceeding be heard in camera if it is satisfied that the hearing should not be open to the public.
30. (1) A judge or prothonotary who is not sitting in court may make an order on a motion if:
(a) the judge or prothonotary is satisfied that all parties affected have consented thereto;
(b) the motion was brought in accordance with rule 369; or
(c) for any other reason the judge or prothonotary considers that the order can be made without a hearing without prejudice to any party.
(2) On motion, the Court may set aside or vary an order made under paragraph (1)(a) on the ground that a party did not consent to it.
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29. (1) Sous réserve du paragraphe (2) et de la règle 30, les audiences de la Cour, sauf les conférences de règlement des litiges et les conférences préparatoires à l'instruction, sont publiques et les lieux où elles sont tenues sont accessibles à tous.
(2) La Cour peut, sur requête, ordonner que l'instruction d'une instance ou d'une partie de celle-ci se déroule à huis clos, si elle est d'avis qu'elle ne devrait pas être publique.
30. (1) Un juge ou un protonotaire ne siégeant pas en cour peut rendre une ordonnance à la suite d'une requête si, selon le cas :
a) il est convaincu que toutes les parties intéressées y ont consenti;
b) la requête a été présentée selon la règle 369;
c) il estime, pour toute autre raison, que l'ordonnance peut être rendue sans audience sans que cela porte préjudice aux parties.
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| (2) La Cour peut, sur requête, annuler ou modifier l'ordonnance rendue en vertu de l'alinéa (1)a) au motif qu'une partie n'y a pas consenti. |
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[12] The exercise of the Board's discretion to deny admissibility of this evidence resulted in a denial of natural justice and a breach of principles of fairness; this refusal significantly and adversely affected Hasan's ability to make out his claim for persecution. There would have been no offsetting prejudice to the Respondent had the evidence been admitted.
[13] While the Board did refer to this evidence as being out-of-date, repetitious or already disclosed, this finding is in error as a matter of law and is patently unreasonable as a matter of fact and law. The very essence of Hasan's claim is the targeting of Palestinians, particularly young males. These documents speak to that issue both from a historical and a current perspective. The documents had not been previously disclosed. The documents were repetitious only in the sense that they told a consistent story.
Fear of Persecution
[14] In addressing the facts supporting a well-founded fear, the Board is entitled to deference and the standard of review is patent unreasonableness. In addressing the legal burden which an applicant must meet, the standard of review is correctness.
[15] The Board failed to consider the fundamental basis of the Applicant's claim; that is, whether he was persecuted due to his identity as a young, male Palestinian living in the Occupied Palestinian Territories. The Board erred in narrowing its focus to Hasan's being the brother of a member of the Palestinian Presidential Security Forces.
[16] There was ample evidence suggesting that the status of young, male Palestinians as a target of Israeli authorities is a live issue. The Board had a duty to consider the merits of this Applicant's evidence and claim on that issue.
[17] Although the Board accepted that Hasan was detained and interrogated, that members of his family were interrogated, that the family home had been under fire and finally destroyed by the Israeli army and that there was evidence of injuries to young Palestinians (family members and otherwise), the Board concluded:
... in light of the repeated Palestinian attacks on Israel ... the Israelis (sic)
retaliatory attacks at the border were general Israeli attacks intended to
inflict widespread damage in the Palestinian land rather than only at the
claimant's family's home.
[18] In drawing this conclusion, the Board erred by placing or imputing the burden on the Applicant of showing that any persecution was purely personal. This Court held in Saliban v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 454 (C.A.) (QL) that it was appropriate to assess the treatment of similarly situated persons and that the test which an Applicant must meet is whether broadly based abuse is sufficiently serious to support a claim for refugee status.
In sum, while modern refugee law is concerned to recognize the protection needs of particular claimants, the best evidence that an individual faces a serious chance of persecution is usually the treatment afforded similarly situated persons in the country of origin. In the context of claims derived from situations of generalized oppression, therefore, the issue is not whether the claimant is more at risk than anyone else in her country, but rather whether the broadly based harassment or abuse is sufficiently serious to substantiate a claim to refugee status. If persons like the applicant may face serious harm for which the state is accountable, and if that risk is grounded in their civil or political status, then she is properly considered to be a Convention refugee.
Conclusion
[19] For these reasons, this judicial review will be granted and the application for refugee status is remitted to a differently constituted panel of the Board for its determination.
[20] There is no question to be certified.
"Michael Phelan
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5420-03
STYLE OF CAUSE: NIDAL HASAN v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO.
DATE OF HEARING: SEPTEMBER 2, 2004
REASONS FOR ORDER: PHELAN J.
DATED: NOVEMBER 1, 2004
APPEARANCES BY:
Mr. Rezaur Rahman FOR THE APPLICANT
Ms. Marie Crowley FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Rezaur Rahman
Ottawa, Ontario
FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT