Ottawa, Ontario, September 27, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
HUSSEN NAYEF ELCHARITI, DIMA THINE,
NOURALDEAN HUSS ELCHARITI and HUSSEN AYA ELCHARITI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Hussen Nayef Elchariti (the Principal Applicant) is a citizen of Syria who converted from the Druze faith to Muslim. He bases his Convention refugee claim on an alleged fear of persecution by reason of his Muslim religion. The alleged agents of persecution are members of the Druze faith. In a decision dated November 23, 2005, a panel of the Refugee Protection Division of the Immigration and Refugee Board of Canada (the Board) determined that Hussen Nayef Elchariti, his wife (Dima Thine) and children (Nouraldean Huss Elchariti and Hussen Aya Elchariti) (collectively, the Applicants) were not Convention refugees. The Applicants seek judicial review of the decision.
Background
[2] Although raised in the Druze faith, the Principal Applicant converted to the Muslim faith of his wife, Dima Thine, shortly after their marriage in 1996. He alleges that he kept his conversion a secret from his family for fear of the consequences. His family learned of the conversion in 1998. In October 1997, the Principal Applicant and his wife came to the United States where their son, Nouraldean Huss Elchariti, was born in 1998 and their daughter, Hussen Aya Elchariti, in 2002.
[3] The family returned to Syria in 1999 where, according to the Principal Applicant’s Personal Information Form (PIF) Narrative, he received visits and death threats from his family members and the Druze community. He alleges that, in March 2004, the Syrian security services visited Dima Thine’s aunt to inform her that the Principal Applicant was wanted by the Syrian government.
[4] The Applicants returned to the United States from Syria on September 9, 1999. On March 12, 2004, Mr. Elchariti was convicted of identity fraud in the United States. On April 6, 2004, the Applicants arrived in Canada, after being refused their asylum claim in the United States, and claimed Convention refugee status in Canada on April 6, 2004.
Issues
[5] The Applicants raise the following issues:
- Are the gaps in the transcript serious enough to constitute a breach of natural justice?
- Did the Board breach the rules of natural justice by failing to advise the Applicants that it would rely on the submissions of the Minister?
- Was the decision made in a perverse or capricious manner and without regard for the evidence before it?
Board Decision
[6] The Board found that the Principal Applicant and his wife did not have a well-founded fear of persecution. Having read the decision, I note that the Board’s reasons describe the following key points:
- According to written submissions made by the Minister, at the Port of Entry (POE), the Principal Applicant failed to disclose his 2004 conviction for identity fraud in the United States or that he was on probation at the time he came to Canada or that he had been expressly told not to travel by his probation officer. The Minister submitted that the Principal Applicant’s credibility was undermined by both the existence of the criminal record and his failure to disclose this information at the POE.
- Contrary to the assertions of the Principal Applicant that the punishment for Druze converts to the Muslim faith sometimes includes death, the Board preferred documentary evidence that Druze who married non-Druze women were excommunicated rather than killed.
- The Board considered the Applicants’ delay in claiming asylum in the United States. Given the Principal Applicant’s alleged fears, it was not credible that the Applicants did not immediately file for protection in the United States.
- In spite of the fact that the hearing was adjourned to allow the Applicants to obtain the original arrest warrant allegedly received by his aunt in Syria, the document was not produced.
[7] For the reasons that follow, I am not persuaded that the decision should be overturned.
Analysis
Issue #1: Transcript Gaps
[8] In oral submissions before me, the Applicants raised concerns about the transcript from the first day of the hearing. In a letter forwarded with the first volume of the transcript, the transcriber noted that “there are many inaudible sections in this transcript due to the claimant not being on a mike; he was also very soft spoken and very difficult to hear”. A review of the first volume shows that there are many spots containing the note “inaudible”. The Applicants argue that these gaps make it impossible for the Court to adjudge this application. I do not agree.
[9] While I acknowledge that there are many such gaps, almost all of the omissions appear in the middle of a sentence or comment by the Principal Applicant. This is not a case where whole sections of testimony are missing. The meaning of the sentences containing the inaudible sections is readily ascertainable. Further, in my view, the inaudible words or phrases are not of a nature that fills in omissions from or changes the Principal Applicant’s testimony.
Issue #2: Minister’s Submissions
[10] Pursuant to s. 25(1) of the Refugee Protection Division Rules, SOR/2002-228, the Minister participated in the hearing by filing a Notice of Intent to Participate. In the Notice, the Minister advised that he would not attend the hearing and provided written submissions related to the POE officer’s interaction with the Principal Applicant. At the hearing, the Board raised the submission with the Principal Applicant. The focus of the discussion at the hearing was on the existence of and facts surrounding the 2004 identity fraud conviction. During the hearing, the Board did not question the Principal Applicant on the facts alleged that he had failed to advise the officer of his conviction, that he was on probation and that he had been requested not to travel. In the decision, the Board referred to the Minister’s submissions, including both the existence of the convictions and the allegations that the Principal Applicant had been reluctant to be forthcoming with complete information and had misled the examining officer at the POE. The Board “weighed this evidence with other credibility issues”.
[11] From this final statement by the Board on the Minister’s submissions, it is unclear to what extent the submissions were relied on by the Board. For purposes of this analysis, I have assumed that the Board concluded that the Principal Applicant’s behaviour at the border – in addition to the existence of a conviction in the United States – undermined the credibility of the Principal Applicant.
[12] The Applicants rely on Siloch v. Canada (Minister of Employment and Immigration), (1993) 18 Imm. L.R. (2d) 239 at 243-244 (C.A.), for the principle that a denial of a right to a fair hearing must always render a decision invalid. In essence, the Applicants argue that the questions and comments of the Board that addressed only the conviction itself made it unfair for the Board to then rely on the other aspects of the Minister’s submissions. This, they argue, is a breach of natural justice. Once again, I do not agree.
[13] The Minister’s submissions formed part of the record at the Board hearings. The Board made numerous references to the Minister’s submissions. Although the focus of Board questions was on the background identity fraud conviction, this does not mean that the Principal Applicant’s behaviour at the POE was “off the table”. In my view, it was self-evident that the entire substance of the submissions was an issue at the hearing. It is illogical to believe that the Principal Applicant’s actions at the POE would not be of concern to the Board. It was open to the Applicants’ counsel to lead evidence from the Principal Applicant to contradict the information that was contained in the Minister’s disclosure concerning the occurrence at the POE; this was not done. This is not a case where the Board, in its decision, relied on information that was not contained in the record or that was not referred to in the hearing. On these facts, there was no breach of natural justice.
Issue #3: Board’s Findings on Credibility
[14] The balance of the Applicants’ submissions relate to the Board’s overall finding of credibility. In the Applicants’ submission, the Applicants submit that the Board erred:
- in finding the Principal Applicant’s reasons for returning to Syria, after the birth of his son in the United States, not credible;
- in ignoring evidence from family members that demonstrated that his life was at risk;
- in making a negative credibility finding because the Applicants failed to provide the original copy of the arrest warrant;
- by ignoring documentary evidence on the treatment of Druze converts;
- in finding that the Principal Applicant was not at risk to his life or of torture or cruel or unusual treatment or punishment due to the lack of any medical evidence of any attack, thereby applying too high a test for persecution; and
- in ignoring the evidence for why they delayed in making a refugee claim in the United States.
[15] The decision of the Board on the lack of credibility is subject to the highest standard of review – that of patent unreasonableness. As stated in Zenunaj v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 2133 (F.C.) (QL) at para. 22, “a patently unreasonable decision is one that is ‘clearly irrational’ or ‘evidently not in accordance with reason’, so flawed that no amount of curial deference can justify letting it stand”.
[16] On this standard, I have reviewed the Board’s decision and the evidence before the Board in light of each of the alleged errors.
[17] The Board is entitled to weigh and reject the explanations of the Applicants as to both their reasons for their return to Syria in 1998 and as to the delay in making a refugee claim. Given the record in this case, I can see nothing perverse about either of these conclusions. At the root of both these conclusions was the lack of an objective fear. Although not expressed by the Board as clearly as it could have been, the Board concluded that returning to Syria for the completion of medical studies was evidence that the Principal Applicant’s fear was not genuine. This is not an unreasonable inference. A similar adverse inference was drawn with respect to the Applicants’ failure to make a timely claim for protection in the United States. When weighed in the light of an alleged fear of death for converting to the Muslim faith, failure to make an early claim undermines the credibility and well-foundedness of that fear.
[18] In his affidavit for this application, the Principal Applicant explains in considerable detail his return to Syria in 1998 and his delay in claiming in the United States. The problem is that much of this information was not provided to the Board; these explanations are simply not part of the record. Based on the information and testimony that was before the Board on these issues, I am satisfied that the Board’s conclusions were not unreasonable.
[19] In its reasons, the Board refers to the fact that the Principal Applicant was never assaulted by any family members or “hostile agents”. The Applicants rely on Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 at 258 (C.A.), for the principles that:
- the [Convention refugee] applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future; and
- the [Convention refugee] applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged.
[20] By referring to the lack of physical attack, the Applicants submit that the Board applied too high a standard for persecution. While I agree completely with the principles set out above, I do not agree with the Applicants’ interpretation of the decision. In my reading of this section of the decision, the Board was simply stating another fact that, when considered together with the documentary evidence concerning Druze practices, supported the Board’s finding. There is no error.
[21] The Applicants relied on the existence of an arrest warrant that had been provided to the Principal Applicant’s aunt in 2004. Only an e-mailed copy of the warrant was provided. During the first day of hearings, the Board expressed the wish to see the “original” of the warrant or summons that was in the possession of the aunt in order that the document could be authenticated. Reading the transcript, I am satisfied that it was made clear to the parties that the Board was referring to the copy of the warrant that had been served on the aunt and not to the original that, obviously, would have been kept by the authorities. The hearing was adjourned to provide the Applicants an opportunity to get that document from the aunt. That was not done. Rather, the Applicants provided a copy of a letter from a Syrian lawyer indicating that the “security Authorities . . . hold the original paper of the order in the file of the wanted person”. The lawyer continues by explaining that the aunt received a copy of the summons. This, of course, was not what was asked for; the Board wanted to see the copy of the document that had been provided to the aunt. In light of the failure to provide “this key piece of evidence”, it was open to the Board to conclude that it did not believe that there was an arrest warrant for the Principal Applicant.
[22] I acknowledge that the Board could have been more careful in making specific reference to the documentary and other evidence that describes the treatment of converts by Druze adherents. Nevertheless, having reviewed the evidence that was before the Board, I am not persuaded that failure to mention every piece of contrary evidence is a basis for overturning the decision in this case.
Conclusion
[23] In sum, I can see no breach of natural justice and no error that would warrant the overturning of the decision.
[24] Neither party proposed a question for certification; none will be certified.
ORDER
This Court orders that:
- The application for judicial review is dismissed; and
- No question of general importance is certified.
____________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7571-05
STYLE OF CAUSE: HUSSEN NAYEF ELCHARITI ET AL v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 7, 2006
APPEARANCES:
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Mr. Rocco Galati
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Ms. Catherine Vasilaros
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SOLICITORS OF RECORD:
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Galati, Rodrigues & Associates, Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada
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FOR THE RESPONDENT |