Date: 19990812
Docket: IMM-3936-98
Ottawa, Ontario, the 12th day of August 1999
Present: The Honourable Mr. Justice Pinard
Between:
Mustafa Ahmed HARB
Wafika CHAGHLIL
Wessam HATAHET
Applicants
- and -
THE MINISTER
Respondent
ORDER
The application for judicial review of the Convention Refugee Determination Division decision dated July 14, 1998, determining that Mustafa Ahmed Harb, his wife Wafika Chaghlil and their son Wessam Hatahet are not Convention refugees, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Peter Douglas
Date: 19990812
Docket: IMM-3936-98
Between:
Mustafa Ahmed HARB
Wafika CHAGHLIL
Wessam HATAHET
Applicants
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a Convention Refugee Determination Division decision dated July 14, 1998, determining that the applicants"Mustafa Ahmed Harb, his wife Wafika Chaghlil and their son Wessam Hatahet"are not Convention refugees.
[2] The Refugee Division found that Mustafa Ahmed Harb, the principal claimant, was not credible owing to inconsistencies and unsatisfactory explanations.
[3] The applicants argued that the Refugee Division based its decision on hearsay, namely the port of entry documents containing information obtained by an American immigration officer regarding the possibility of claiming refugee status in the United States. On this subject, it is important to note that the Refugee Division is not bound by any strict rules of evidence, as subsection 68(3) of the Immigration Act provides:
| 68. (3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case. |
68. (3) La section du statut n'est pas liée par les règles légales ou techniques de présentation de la preuve. Elle peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision. |
[4] Furthermore, in Prassad v. M.E.I., [1989] 1 S.C.R. 560, at pages 568-69, the Supreme Court of Canada dealt with the powers of an administrative tribunal in relation to its procedures as follows:
| . . . We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. . . . |
[5] In this context"in which the applicants did not object to the filing of the evidence in question at the hearing before the Refugee Division and were already aware of the information in the immigration officer"s notes"I see nothing unfair about the procedure the panel followed.
[6] The applicants also complained of a breach of the principles of natural justice because of the language used. They argued that the principal claimant"s port of entry statement, made in English, should not have been submitted in evidence because there was no interpreter at the time; at the same time, they complained that part of the hearing before the panel was held in Arabic, their mother tongue, rather than in English, as the principal claimant had initially requested. In this respect, it is important to remember that the applicants did not object to the filing of the statement in question before the Refugee Division. Moreover, the evidence shows that the principal claimant, who worked in English in the United States for over six years, understands English very well: (1) his Personal Information Form (PIF) was completed in English, without an interpreter; (2) his representative made no objection based on language, having on the contrary told the panel that there was no problem with the hearing being held partly in English and partly in French, given that a qualified interpreter was translating into Arabic; and (3) the following passage from the transcript, at page 357 of the panel"s record:
[TRANSLATION]
| - He speaks English very well. |
| . . . |
| Q. So, you speak English very well? Therefore, you readily understand the questions asked therein? |
| A. 90%, 95%. |
[7] Under the circumstances, the applicants" position on the use or non-use of English at the port of entry and the hearing before the panel is in my view rather inconsistent.
[8] Last, the applicants argued that the Refugee Division"s finding that the principal claimant was not credible was based on non-essential evidence. Considering that in the absence of clear and convincing evidence to the contrary, it should be assumed that the Refugee Division had regard to all the evidence (see Hassan ),1 on reviewing the evidence I am not satisfied that it was unreasonable for this specialized tribunal to have made the finding it made (see Aguebor).2 As was held in Sheikh,3 the Refugee Division"s perception that the applicants are not credible is in fact tantamount to a finding that there is no credible evidence capable of justifying their refugee claim.
[9] For all these reasons, the application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
August 12, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3936-98
STYLE OF CAUSE: MUSTAFA AHMED HARB ET AL. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: June 29, 1999
REASONS FOR ORDER OF PINARD J.
DATED August 12, 1999
APPEARANCES:
Jacques Beauchemin FOR THE APPLICANTS
Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jacques Beauchemin FOR THE APPLICANTS
Alarie, Legault, Beauchemin, Paquin
Jobin, Brisson & Philpot
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317, at page 318.