Date: 20050617
Docket: IMM-9356-04
Citation: 2005 FC 835
BETWEEN:
YOUSSEF AYOUB EL HAYEK
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Docket: IMM-9354-04
BETWEEN:
LAURETTE BOULOS
REMI YOUSSEF EL HAYEK
RALPH YOUSSEF EL HAYEK
REINE YOUSSEF EL HAYEK
ASSAAD YOUSSEF EL HAYEK
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated October 7, 2004, that the applicants are not "Convention refugees" or "persons in need of protection" under the definitions in sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2] Youssef Ayoub El Hayek (the principal applicant), his wife Laurette Boulos, and their four children, Reine Youssef El Hayek, Assaad Youssef El Hayak, Ralph Youssef El Hayek and Remi Youssef El Hayek, are all citizens of Lebanon. They say they fear being persecuted because of their religion and their political opinions. They maintain as well that they are "persons in need of protection" in that they would personally be exposed to a danger of torture or risk to their lives or risk of cruel and unusual punishment or treatment in Lebanon.
[3] The claims of the wife and the four children are based on the claim of the principal applicant. The wife was heard at the same time as her husband, on the same dates and by the same Board member.
[4] The principal applicant alleges that he was persecuted because of his membership in the Kataeb political party, also referred to as the Lebanese Phalanges or Phalangists. He had been a member since 1977 and his political activities consisted of attending meetings or demonstrations and organizing celebrations.
[5] The IRB essentially held that the principal claimant was excluded from the application of the Convention refugee definition pursuant to Article 1F(c) of the United Nations Convention Relating to the Status of Refugees (the Convention).
[6] The principal applicant argues, first, that another decision, favourable to his claim, was made on April 4, 2003. The respondent, however, argues that the "Hearing Disposition Record - RPD" (see the Applicant's Record, at pages 20 and 21) cannot be considered a decision that would have the effect of making the Panel functus officio as of April 4, 2003. The respondent submits that it is an internal administrative document containing, at most, some indication of how the Board member foresaw the outcome of the claim of Youssef Ayoub El Hayek and the other claimants at that time. I agree.
[7] As the respondent emphasizes, no decision was made viva voce and no reason was given at the hearing. In this regard, paragraph 63(1)(b) of the Refugee Protection Division Rules, SOR/2002-228 (the Rules) provides that in such cases, that is, when the decision is reserved, the decision allowing a claim for refugee protection takes effect when the Board member signs and dates the decision, while under paragraph 63(2)(b), the decision rejecting a claim for refugee protection takes effect when the Board member signs and dates the reasons for the decision.
[8] Section 63 of the Rules reads as follows:
63. (1) A decision allowing a claim takes effect
(a) if given orally at a hearing, when a Division member states the decision; and
(b) if made in writing, when a Division member signs and dates the decision.
63. (1) La décision accueillant une demande d'asile prend effet :
a) au moment où le commissaire rend la décision, s'il la rend de vive voix à l'audience;
b) au moment où le commissaire signe et date la décision, s'il la rend par écrit.
(2) A decision rejecting a claim takes effect
(a) if given orally at a hearing, when a Division member states the decision and gives reasons; and
(b) if made in writing, when a Division member signs and dates the reasons for the decision.
(2) La décision rejetant une demande d'asile prend effet :
a) au moment où le commissaire rend la décision et en donne les motifs, s'il la rend de vive voix à l'audience;
b) au moment où le commissaire signe et date les motifs de la décision, s'il la rend par écrit.
[9] Section 63 does not define the word "decision". It is not the purpose of this provision to determine the moment at which a decision is made and a panel becomes functus; rather its purpose is to determine at what point the decision becomes legally effective. In my opinion, this interpretation of section 63 of the Rules is reinforced by section 169 of the Act, which establishes a clear distinction between the way in which decisions are made and their becoming effective. Section 169 indicates that when decisions take effect in accordance with the Rules, they are rendered orally or in writing, and reasons must be given:
| 169. In the case of a decision of a Division, other than an interlocutory decision: (a) the decision takes effect in accordance with the rules; (b) reasons for the decision must be given; (c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing; (d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;
(e) if the person who is the subject of proceedings before the Board or the Minister requests reasons for a decision within 10 days of notification of the decision, or in circumstances set out in the rules of the Board, the Division must provide written reasons; and (f) the period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later.
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169. Les dispositions qui suivent s'appliquent aux décisions, autres qu'interlocutoires, des sections : a) elles prennent effet conformément aux règles; b) elles sont motivées; c) elles sont rendues oralement ou par écrit, celles de la Section d'appel des réfugiés devant toutefois être rendues par écrit;
d) le rejet de la demande d'asile par la Section de la protection des réfugiés est motivé par écrit et les motifs sont transmis au demandeur et au ministre; e) les motifs écrits sont transmis à la personne en cause et au ministre sur demande faite dans les dix jours suivant la notification ou dans les cas prévus par les règles de la Commission;
f) les délais de contrôle judiciaire courent à compter du dernier en date des faits suivants : notification de la décision et transmission des motifs écrits.
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[10] Accordingly, I am of the opinion that the hearing disposition record in question cannot be considered a decision on the basis of which the IRB became functus officio, because it is an internal administrative document the content of which was not the subject matter of an official pronouncement, which contains no reasons and which was never communicated to the applicants.
[11] It is also clear that the Panel never had any intention of making a final decision at that time, since it appears that on February 17, 2004, the second page of the document in question was crossed out with the note "continuation" (see Exhibit "A" documents in support of the affidavit of Hélène Jarry, filed on March 24, 2005).
[12] Furthermore, at no point subsequently did the principal applicant object to the resumption of the hearing on the basis of this "Hearing Disposition Record - RPD", a document that he had learned about through the Access to Information Act. Instead, the applicant requested and obtained an adjournment to enable him to prepare adequately.
[13] The principal applicant alleges, next, that the argument before the IRB was never about Article 1F(c) of the Convention; the Panel, at the outset of the hearing, having mentioned Article 1F(a) but later basing its final decision on Article 1F(c). After reviewing the record and reading the transcript of the hearing, I fail to see any breach of procedural fairness. It is clear from the record that the principal applicant and his counsel were properly informed of the fact that the Article 1F(c) was indeed at issue and that they acted accordingly. It suffices to refer to pages 96 to 118 and 1018 and 1019 of the Panel Record to recognize this (see also Arica v. Minister of Employment and Immigration, [1995] F.C.J. No. 670 (F.C.A.) (QL)).
[14] To apply Article 1F(c), the Board member had to be satisfied, on less than the balance of probabilities, that there were serious reasons for considering that the applicant had been guilty of acts contrary to the purposes and principles of the United Nations (Zrig v. Minister of Citizenship and Immigration, [2003] F.C.J. No. 565 (F.C.A.) (QL) and Bazargan v. Minister of Employment and Immigration (1996), 205 N.R. 282 (F.C.A.)). The record indicates that the Kataebs and Lebanese Forces had more than once committed inhumane acts.
[15] The applicant argues that the Board member had no serious reason for considering that he was guilty within the meaning of Article 1F(c). However, the documentary evidence is clear on the presence and overriding importance of the Kataeb militia within the Lebanese Forces (Exhibit A-11, at page 424 of the Panel Record). The interpreter stated that the words "Phalangist" and "Kataeb" meant the same thing, and the expert witness testified that the Phalangists and Lebanese Forces overlapped (pages 1257-1258 and 1347 of the Panel Record). So it was not unreasonable for the Panel to conclude that the applicant was a member of both groups.
[16] The principal applicant submits that the Board member failed to identify the specific acts of which he was indirectly guilty on account of his membership in the Kataeb party, and also the "purposes and principles" of the United Nations that had supposedly been violated by the applicant.
[17] A person may be found to be an accomplice without having belonged to such an organization, provided it can be concluded, on the facts, that he or she participated personally and knowingly in the commission of international crimes (Saridag v. Minister of Employment and Immigration, [1994] F.C.J. No. 1516 (T.D.) (QL)). The true test of complicity is that of personal and knowing participation, as described by Madam Justice Reed in Penate v. Canada (M.E.I.), [1994] 2 F.C. 70, at pages 84 and 85:
As I understand the jurisprudence, it is that a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself) but who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation.
[18] I am of the opinion that the applicant meets this test since he acknowledged that he was aware of the events occurring in the Palestinian camps of Sabra and Chatila in 1982, and he also acknowledged being aware of the existence of a Lebanese Forces detention centre very near his village. Individuals may be held responsible for the acts of others because of their close association with the principal actors (Sivakumar v. Canada (M.E.I.), [1994] 1 F.C. 433 (C.A.)). The applicant was a member of the Kataeb party and, notwithstanding his knowledge of the party's activities, he continued to be affiliated with them.
[19] Concerning the purposes and principles of the United Nations, the Federal Court of Appeal, in Harb v. Minister of Citizenship and Immigration, [2003] F.C.J. No. 108 (QL), drew an analogy between crimes against humanity and acts contrary to the purposes and principles of the United Nations. So it was sufficient for the Panel to say that the inhumane acts committed by the Kataebs constituted crimes against humanity.
[20] The claim of the wife and children is based on that of the principal applicant and must therefore suffer the same fate. Furthermore, the Board member did not err in rejecting their claim because they failed to establish that they were personally in danger in Lebanon. Indeed, they had not been directly threatened and they were not active politically; also, the wife said she had visited the United States in 1996 and remained there for three months before returning to Lebanon; later, however, she did not leave that country with her children until August 28, 2000; this lengthy delay in leaving Lebanon undermines the credibility of their story and demonstrates a lack of subjective fear.
[21] For all of these reasons, the application for judicial review is dismissed.
[22] I agree with the learned counsel for the applicants that the questions proposed by the respondent are not serious questions of general interest. What we have here is particular facts making up a case that is completely sui generis. There is no matter for certification here, therefore.
YVON PINARD
Judge
OTTAWA, ONTARIO
June 17, 2005
Certified true translation
Peter Douglas
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9356-04
IMM-9354-04
STYLE OF CAUSE: YOUSSEF AYOUB EL HAYEK v. MINISTER OF CITIZENSHIP AND IMMIGRATION
LAURETTE BOULOS, REMI YOUSSEF EL HAYEK, RALPH YOUSSEF EL HAYEK, REINE YOUSSEF EL HAYEK, ASSAAD YOUSSEF EL HAYEKv. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 12, 2005
REASONS FOR ORDER: Pinard J.
DATED: June 17, 2005
APPEARANCES:
Jean-François Fiset FOR THE APPLICANTS
Marie-Nicole Moreau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean-François Fiset FOR THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General
of Canada
Date: 20050617
Docket: IMM-9356-04
Ottawa, Ontario, the 17th day of June, 2005
PRESENT: MR. JUSTICE PINARD
BETWEEN:
YOUSSEF AYOUB EL HAYEK
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision by the Refugee Protection Division, dated October 7, 2004, that the applicant is not a "Convention refugee" or "person in need of protection" under the definitions in sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
YVON PINARD
Judge
Certified true translation
Peter Douglas