Date: 20020626
Docket: IMM-5055-01
Neutral citation: 2002 FCT 720
Toronto, Ontario, Wednesday, the 26th day of June, 2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
SABRI SHOKA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
- [1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), dated September 21, 2001, determining that the Applicant is not a Convention refugee.
- [2] The Applicant is a stateless Palestinian who based his claim on his political opinion and membership in a particular social group, persons alleged to have collaborated with the Palestinian Authorities and with the Israelis. The Applicant was arrested in 1989 by Israeli authorities and detained for 3 months. The Applicant alleged that following his release he was required to report to the Israeli authorities on a regular basis and as a result, Palestinian authorities believed he was an Israeli collaborator. The Applicant stated that he was arrested and beaten and detained for 14 months by the Palestinian authority. Upon his release, he moved to Bethlehem and lived with his mother. While living there, the Applicant alleges that a member of the Palestinian militant group Hamas threatened and harassed him on a regular basis for over two years until he came to Canada. Prior to fleeing to Canada in 2000, the Applicant learned that his friend, Adnan Shahin, had been kidnapped and shot and killed.
- [3] With respect to the evidence provided by the Applicant, who is referred to in the CRDD's decision as the "second claimant", the CRDD had this to say:
The panel is not persuaded that the second claimant had to report to Israeli authorities as he alleges. The panel is not persuaded that any masked men visited or threatened the second claimant. The panel is equally not persuaded in the matter of Adnan Shahin. The panel does not find the second claimant's testimony to be credible or plausible.
- [4] Thus, the CRDD found that the claimant was lying. The question is: why?
- [5] There are some inconsistencies in the story which the claimant gave which, in my opinion, can be fairly considered clarifications. In my opinion, it is patently unreasonable to discount the Applicant's whole story as a lie based on these inconsistencies. As a result, I find that the CRDD's conclusion with respect to the Applicant's credibility is really a result of the Applicant's evidence not being considered plausible.
- [6] With respect to plausibility, it is admitted by counsel for the Applicant that the CRDD presiding member is very familiar with the Middle East and in particular Hamas, Israel, and the Palestinian Authority. It is apparent to me that this knowledge drives the result in the present case.
- [7] In its decision, the CRDD cites Faryna v. Chorny (M.E.I.) [1952] 2 D.L.R. 354 (B.C.C.A.) for the following direction on plausibility findings:
In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
- [8] It was certainly open for the CRDD to make plausibility findings but, in my opinion, the knowledge that is required to do so must be known to the Applicant, and, in particular, must be on the record to determine if the plausibility conclusions reached can be justified.
- [9] The only reference in the CRDD decision about knowledge upon which the plausibility findings are based is the following passage found at page 7:
The panel does not find credible the story about masked men. The panel cannot accept that armed men in the numbers described by the second claimant could not have laid hands on the second claimant had they wished to do so. The panel does not find that members of Hamas would be as ineffectual against the second claimant as he would have us accept if they perceived him to be a collaborator with Israel. Hamas is not a group of political activists. This is the group pledged to a holy war against Israel, and thus against those who it perceives as collaborating with Israel. This is the group that has sent suicide bombers deep into Israel itself. This is the group capable of mobilizing mass demonstrations of thousands in PA areas. Europa World Book: 1999 clearly describes the strength and vehemence of Hamas against perceived Israeli targets. Political Handbook of the World: 1999 describes how the Chairman of the PA, Arafat, included representatives of Hamas at a national dialogue conference in 1997 to "lend with to his assertions (to Israel) that military resistance (including resumption of the intifada) was becoming a growing possibility."
- [10] After careful scrutiny and argument by counsel, I find that the cited references provide no evidence to support the negative plausibility findings made. I also find that there is no other evidence in the record to support these findings.
- [11] Thus, I agree with the Applicant that the plausibility findings can only be considered speculation.
- [12] On this basis, I find that the decision under review was made in reviewable error.
ORDER
1. Accordingly, I set the CRDD's decision aside and refer this matter back for redetermination before a differently constituted panel.
"Douglas R. Campbell"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5055-01
STYLE OF CAUSE: SABRI SHOKA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, JUNE 11, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: WEDNESDAY, JUNE 26, 2002
APPEARANCES: Mr. Robert I. Blanshay
For the Applicant
Ms. Anneke Smit
For the Respondent
SOLICITORS OF RECORD: Robert Blanshay
Barrister & Solicitor
49 St. Nicholas Street
Toronto, Ontario
M4Y 1W6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020626
Docket:IMM-5055-01
Between:
SABRI SHOKA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER