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