Date: 19990504
Docket: IMM-3196-98
OTTAWA, ONTARIO, MAY 4, 1999
PRESENT: MR. JUSTICE TEITELBAUM
BETWEEN:
SALAH LABSARI
Applicant
AND:
THE MINISTER
Respondent
O R D E R
For the reasons set out in the Reasons for Order, the application for judicial review is allowed and the matter is referred back to a different panel for rehearing.
Max M. Teitelbaum
J.F.C.C.
Certified true translation
Peter Douglas
Date: 19990504
Docket: IMM-3196-98
BETWEEN:
SALAH LABSARI
Applicant
AND:
THE MINISTER
Respondent
REASONS FOR ORDER
TEITELBAUM J.
INTRODUCTION
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board dated June 12, 1998, refusing to grant the applicant refugee status on the ground that he is not a Convention refugee. The Panel held that in view of the alleged facts, the applicant"s fear of persecution did not fit any of the five grounds listed in the "Convention refugee" definition in subsection 2(1) of the Immigration Act .
[2] The applicant asks this Court to set aside the decision dated June 12, 1998, and order a rehearing before a different panel.
FACTS
[3] The applicant is a citizen of Algeria. Son of an Algerian-French war veteran who is still a member of the National Liberation Front [Front de Libération Nationale (FLN)], the applicant owned a travel agency. Due to the ongoing conflict in Algeria since 1992, the applicant was obliged to operate public transportation to compensate for the drop in tourism in Algeria.
[4] The applicant says the political situation in the region in which his village is located grew increasingly critical because of constant threats from terrorists of the Armed Islamic Group [Groupe Islamique Armé (GIA)], which particularly took aim at anyone connected with the State and at all FLN veterans.
[5] In 1993, while transporting travellers, the applicant"s bus was stopped by a fake roadblock put up by the GIA. The terrorists checked whether there were any young soldiers in civilian clothes or local police officers on the bus before setting it on fire.
[6] The applicant says that in March 1996, the village where he was living, Telagh, was the target of terrorists who burned down an electronics company and stole 650 million Algerian dinars. At that time, the terrorists demanded he give them his all-terrain truck, but he refused to do so. He subsequently decided to sell it at a ridiculously low price.
[7] The applicant says the terrorists later telephoned repeatedly, demanding the truck and threatening him with death if he refused to surrender it.
[8] In the wake of these events, the applicant left Algeria for Tunisia to obtain a visa for the United States, which he was initially refused.
[9] Following this initial refusal, the applicant and some Tunisians turned to an organization by the name of "Club Système Vacance" for a visa and airplane ticket for the United States. They later discovered this organization had swindled them out of two thousand American dollars. They sued and, five months later, obtained judgment from a Tunisian court, but were unable to enforce it.
[10] In order not to overstay his legal visit to Tunisia, the applicant returned to Algeria on or about April 9, 1997. He remained near the Tunisian border and returned to Tunisia on April 13, 1997, to repeat the procedure for obtaining a visa for the United States, which he obtained on June 6, 1997.
[11] He left Tunisia for the United States on August 9, 1997, stopped over for one night in Holland and arrived in the United States on August 10, 1997, where a friend put him up for three days. He came into Canada on August 14, 1997, and claimed refugee status. He was granted permission to come into Canada on August 26, 1997.
SUBMISSIONS OF THE PARTIES
Applicant"s arguments
[12] The applicant, represented by different counsel at the hearing before the Panel, submits that the Panel breached the rules of natural justice on the following grounds:
| [TRANSLATION] The Board members completely took over the applicant"s burden of proof, to the exclusion of counsel. |
| They alone questioned the applicant during the entire examination in chief, which lasted about 75 minutes; counsel asked only one question. |
| They confined counsel to mere "explanation or clarification" questions at the crucial point in the presentation of the applicant"s evidence. |
| Even after counsel had made her submissions, they continued to question the applicant. |
| Although they took over the examination in chief, the Board members neglected to question the applicant on the issue of the link between his personal situation and the grounds for persecution set out in the definition; that issue, however, formed the sole basis for their decision. |
| Through the frequency and degree of interference by the Board members, and particularly through Board member Handfield"s completely unwarranted animosity toward the applicant (going so far as to criticize him for answering questions asked by his colleague Ndejuru), the Board members gave rise to a more than reasonable apprehension of bias. |
[13] The applicant also submits that it cannot be inferred from his then-counsel"s silence that he tacitly waived his right to a full and proper hearing.
[14] The applicant also submits that the Panel misapprehended the problems he had experienced in Algeria when it found that he did not have any ground of persecution set out in the "Convention refugee" definition in subsection 2(1) of the Immigration Act .
[15] The applicant submits that his refusal to surrender his truck was, in fact, an implicit expression of his political opinion on the ongoing terrorism in Algeria, because the authorities use the same type of truck.
Respondent"s arguments
[16] The respondent submits that the Panel did not err and that under paragraph 67(2)(b) of the Immigration Act, the Board members on the Panel are entitled to ask the claimant questions, even vigorously, in order to obtain answers.
[17] The respondent submits that since then-counsel for the applicant did not raise a reasonable apprehension of bias at the hearing, it is now too late to do so.
[18] The respondent also submits that the same conclusion applies to the applicant"s argument that he was unable to plead his case and explain the facts regarding his claim.
[19] The respondent submits that it is not unreasonable for the Panel to have found that the story the applicant told was unrelated to any of the grounds in the "Convention refugee" definition.
[20] The respondent submits that the Panel did not err in finding that the applicant had not shown that he had been persecuted for reasons of political opinion, since the facts show that he took the time to find a buyer for his truck before initiating the procedure for obtaining a visa and stayed in Holland and the United States without claiming refugee status before coming to Canada.
ISSUES
[21] This case raises two issues:
| 1. whether the Panel erred in law by failing to observe the rules of natural justice in the conduct of the hearing; |
| 2. whether the Panel erred in law or in fact by finding that the applicant did not establish a fear of persecution for any of the grounds listed in the "Convention refugee" definition in subsection 2(1) of the Immigration Act . |
ANALYSIS
Apprehension of bias
[22] With respect to the conduct of the hearing, the applicant submits that the Board members were biased during his examination, and breached the rules of natural justice regarding his right to a full and proper hearing by not allowing him to plead his case and lead his evidence.
[23] Subsections 68(2) and (3) of the Immigration Act most certainly give the Panel greater latitude with respect to the conduct of the hearing and the rules of evidence.
[24] The Federal Court of Appeal said in Mahendran v. Canada (M.E.I.) (1991), 134 N.R. 316:
| Conclusion |
| Counsel for both parties agree that the applicable test for determining whether a reasonable apprehension of bias exists in the circumstances of a particular case is that set out in the case of Committee for Justice and Liberty et al v. National Energy Board. The test is: |
| "what would an informed person, viewing the matter realistically and practically " and having thought the matter through " conclude. Would he think that it is more likely than not that the Tribunal here, whether consciously or unconsciously, would not decide fairly?" |
| Keeping in mind that, pursuant to Subsection 68(3) of the Immigration Act, this Tribunal is not bound by any legal or technical rules of evidence and also remembering that the Tribunal is charged with deciding each application on the basis of evidence which it considers credible or trustworthy, one can perhaps have some understanding for Tribunal members who, in their enthusiasm to perform their duties in a creditable fashion, may sometimes create a perception of over-aggressiveness and unfairness. However, for the reasons given herein, I conclude that the conduct of the Tribunal members sought to be impeached does not offend the principles set out in the Committee for Justice and Liberty case supra. |
[25] Mr. Justice Nadon pointed out in Kante v. Canada (M.E.I.), [1994] F.C.J. No. 525:
| The law is clear that the burden of proof lies with the Applicant i.e. he must satisfy the Refugee Division that his claim meets both the subjective and objective tests which are required in order to have a well founded fear of persecution. Consequently an Applicant must come to a hearing with all of the evidence that he is able to offer and that he believes necessary to prove his claim. |
| As a result the Refugee Division should not meddle in the Applicant"s attempt to prove his case except where it is necessary to clarify certain facts essential to its understanding. If the Division is satisfied with certain aspects of the Applicant"s evidence it should so indicate clearly on the record before making suggestions or asking the Applicant"s counsel not to question his client in regard to issues which counsel may consider relevant. |
[26] After a careful reading of the transcript filed in the Panel"s record, I am of the view that the Board members" actions during the hearing do not warrant the Court"s intervention because it is hard to say that the Board members showed animosity toward the applicant; they asked many questions about the documents filed, particularly his birth certificate, apparently for the sake of clarification.
[27] The transcript also shows that then-counsel for the applicant had a chance to put forward her arguments at the end of the examination.
[28] In any event, based on the principles of natural justice, and despite the Panel"s instructions at the outset of the examination, it was completely open to then-counsel for the applicant to make whatever representations she considered necessary to protect her client"s interests.
[29] Thus, Mr. Justice Dubé in Del Moral v. Canada (M.E.I.), [1998] F.C.J. No. 782, said:
| Concerning the participation of the applicants" first counsel before the panel, there is surely no reason to impose on the panel an obligation to come to the applicant"s aid. In Gholam-Nejad v. Minister of Employment and Immigration , Gibson J. of this Court stated that he found nothing on the face of subsection 18.1(4) of the Federal Court Act that would authorize the intervention of this Court where the problem is due to a failure on the part not of the panel but of counsel for the applicant. Gibson J. referred to a decision by Mahoney J.A., then of the Federal Court of Appeal, in Paterno v. Minister of Employment and Immigration that dismissed an application for leave as follows: |
| Notwithstanding the consent of the respondent, this application for leave to appeal is dismissed. The incompetence of counsel chosen by a refugee claimant is not, of itself, a ground upon which it may be reasonably agreed that the refugee division erred. |
[Footnotes omitted.]
[30] The Panel made no reviewable error with respect to the conduct of the hearing, and the Court is unauthorized to intervene where the error is caused by counsel for the applicant.
[31] I must say I almost allowed this application solely on the basis of Board member Handfield"s"in my view, pointless"interference. It is not for the Panel to present the applicant"s case in his counsel"s place. This Board member"s approach seems unacceptable and should not be allowed.
Grounds for persecution based on political opinion
[32] In its decision, the Panel said:
| [TRANSLATION] After reviewing all the evidence, we find that the claimant is not a refugee for the following reason. We are unable to find, based on the story alleged by the claimant in support of his claim, that he fears persecution for any of the five grounds listed in the "Convention refugee" definition. The alleged problem is said to be related to the ownership of an all-terrain vehicle that was apparently coveted by an alleged terrorist group. |
| Therefore, the panel is of the view that owning a Toyota all-terrain (4X4) vehicle is completely unrelated to any of the five grounds set out in the "Convention refugee" definition. It is not a matter of political opinion (actual or imputed), membership in a particular social group (the criteria for which are set out in Ward ), race, religion or nationality. |
[33] As the decision shows, the Panel completely disregarded whether there was a well-founded fear of persecution, confining itself merely to determining whether the nature of the alleged event involved a fear of persecution consistent with the grounds for persecution set out in the "Convention refugee" definition in subsection 2(1) of the Immigration Act . "[TRANSLATION] Under the circumstances, we need not consider whether the alleged fear is well founded."
[34] As I recently said in Alifanova,1 the applicant had to establish a link between his fear of persecution and one of the Convention grounds:
| To qualify as a Convention refugee, claimants must establish that the persecution they fear is linked to one of the reasons listed in the Convention (Rizkallah v. Canada (M.E.I.) (6 May 1992) A-606-90 (F.C.A.)). . . . |
[35] The applicant submits that his refusal to surrender his truck was an expression of his implicit political opinion on the GIA"s activities. Therefore, the applicant fears he would be persecuted for reasons of political opinion if he had to return to Algeria.
[36] In his undisputed testimony, the applicant told the Panel:2
[TRANSLATION]
| Q. You were doomed to die because you did not surrender your vehicle? |
| A. Yes. I did not want to give in to their threats. If I gave in to their threats, Sir, by surrendering my vehicle, which is like the one the Algerian authorities use, I might have been an accomplice in the eyes of the Algerian authorities. |
| Q. Because you had a vehicle . . . |
| A. Like the one the authorities use. It"s a Toyota four-by-four all-terrain vehicle. |
[37] In Ward,3 the Supreme Court of Canada went to great lengths to define what could constitute persecution based on a refugee claimant"s political opinion:
| C. Political Opinion |
| . . . |
| Political opinion as a basis for a well-founded fear of persecution has been defined quite simply as persecution of persons on the ground "that they are alleged or known to hold opinions contrary to or critical of the policies of the government or ruling party"; see Grahl-Madsen, supra , at p. 220. The persecution stems from the desire to put down any dissent viewed as a threat to the persecutors. Grahl-Madsen"s definition assumes that the persecutor from whom the claimant is fleeing is always the government or ruling party, or at least some party having parallel interests to those of the government. As noted earlier, however, international refugee protection extends to situations where the state is not an accomplice to the persecution, but is unable to protect the claimant. In such cases, it is possible that a claimant may be seen as a threat by a group unrelated, and perhaps even opposed, to the government because of his or her political viewpoint, perceived or real. The more general interpretation of political opinion suggested by Goodwin-Gill, supra , at p. 31, i.e., "any opinion on any matter in which the machinery of state, government, and policy may be engaged", reflects more care in embracing situations of this kind. |
| Two refinements must be added to the definition of this category. First, the political opinion at issue need not have been expressed outright. In many cases, the claimant is not even given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions. In such situations, the political opinion that constitutes the basis for the claimant"s well-founded fear of persecution is said to be imputed to the claimant. The absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution, but it does not preclude protection of the claimant. |
| Second, the political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant"s true beliefs. The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution. The political opinion that lies at the root of the persecution, therefore, need not necessarily be correctly attributed to the claimant. Similar considerations would seem to apply to other bases of persecution. |
[Emphasis added.]
[38] On the basis of the foregoing, an action may be perceived as an expression of a claimant"s political opinion.
[39] After reviewing the evidence in the record, I am of the view that the Panel erred in determining that the refusal to surrender the truck to GIA members involved no expression of political opinion.
[40] In addition to the applicant"s above-quoted testimony, the documentary evidence shows the extent of the ongoing terrorism in Algeria and the danger it represented:
| The Government maintains that the security forces resort to lethal force only in the context of armed clashes with terrorists. The Government also contends that, as a matter of policy, disciplinary action is taken against soldiers or policemen who are guilty of violating human rights. The government-linked National Observatory for Human Rights (ONDH) reported several instances in which military and security personnel were punished for abuses during the year. |
| Armed groups targeted both security force members and civilians. Terrorists attacked civilians whom they regarded as instruments of the State or whose lifestyles they considered in conflict with Islamic values. Sometimes they killed in the course of armed robberies or to enforce local protection rackets. Some terrorist bombings seemed intended only to create social disorder by causing a high number of civilian casualties without any apparent concern for the particular target. Increasingly armed groups killed large groups of civilians, including infants, often in apparent retaliation against villages or families that had ceased providing support to them. In September a number of teachers were murdered in front of their students. |
| In September the terrorist Armed Islamic Group (GIA) issued an official communique in which it claimed responsibility for the ongoing violence, terming the massacres "an offering to God" and pledging to continue. . . .4 |
[Emphasis added.]
[41] Thus, in light of the foregoing, it seems completely unreasonable for the Panel to have found that the refusal to surrender the truck could not have been an expression of political opinion.
[42] By this, I do not mean that the Panel should declare the applicant a refugee. I just mean that it seems unreasonable for the Panel to have found that the refusal to surrender the truck could not have been an expression of political opinion, without giving more details in its decision.
CONCLUSION
[43] The application for judicial review is allowed and the matter is referred back to a different panel for rehearing.
[44] Neither party filed any question to be certified.
Max M. Teitelbaum
J.F.C.C.
Ottawa, Ontario
May 4, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3196-98
STYLE OF CAUSE: SALAH LABSARI v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: APRIL 30, 1999
REASONS FOR ORDER OF TEITELBAUM J.
DATED MAY 5, 1999
APPEARANCES:
DENIS GIRARD
FOR THE APPLICANT
SYLVIANE ROY
FOR THE RESPONDENT
SOLICITORS OF RECORD:
DENIS GIRARD
FOR THE APPLICANT
SYLVIANE ROY
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 Alifanova v. Canada (M.E.I.), [1998] F.C.J. No. 1825.
3 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
4 Algeria Country Report on Human Rights Practices for 1997, U.S. Department of State, Panel"s record, volume 1, page 115.