19980909
Docket: IMM-4444-97
BETWEEN:
SOHAYL FAROUK S. ELBARBARI
(a.k.a. Sohail Farouk Elbarbari)
and
SAMER FAROUK ELBARBARI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN, J.:
[1] The applicants, who were found by the Immigration and Refugee Board to be stateless Palestinians, were determined by the Board not to be Convention refugees.
[2] In Thabet v. M.C.I. (1998), 160 D.L.R. (4th) 666, the Federal Court of Appeal set forth the approach for determining Convention refugee claims for stateless persons. The certified question with respect to a claim for Convention refugee status by a stateless person was answered by Linden J.A, as follows:
I would, therefore, answer the certified question in the following way:
| In order to be found to be a Convention refugee, a stateless person must show that, on a balance of probabilities he or she would suffer persecution in any country of former habitual residence, and that he or she cannot return to any of his or her other countries of former habitual residence. |
[3] Here the Board found that Iraq, Egypt and the U.S. were countries of former habitual residence and that the applicants had no right of return to any of them. This then left the question of whether the applicants had a well-founded fear of persecution in any of those countries. The Board found they had no well-founded fear of persecution in the United States and that while they may have suffered discrimination in Egypt, they had no well-founded fear of persecution in that country either.
[4] However, notwithstanding that the applicants also claimed a well-founded fear of persecution in Iraq, the Board did not address this issue.
[5] In view of the finding of the Federal Court of Appeal in Thabet, once the Board found that Iraq was a country of former habitual residence, and that the applicants advanced evidence on the issue of a well-founded fear of persecution in that country, the Board was bound to make a determination on that issue. In failing to do so, the Board erred in law.
[6] The judicial review is allowed and the matter is remitted to a different panel of the Immigration and Refugee Board for redetermination on all issues by way of hearing de novo.
"Marshall Rothstein"
Judge
Toronto, Ontario
September 9, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4444-97
| STYLE OF CAUSE: SOHAYL FAROUK S. ELBARBARI |
| (a.k.a. Sohail Farouk Elbarbari) |
| and |
| SAMER FAROUK ELBARBARI |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: TUESDAY, SEPTEMBER 8, 1998 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: ROTHSTEIN, J. |
| DATED: WEDNESDAY, SEPTEMBER 9, 1998 |
APPEARANCES:
| Mr. James T. Hunt |
| For the Applicants |
| Mr. Kevin Lunney |
| For the Respondent |
| SOLICITORS OF RECORD: Haffey, Sherwood, Hunt |
| Barristers & Solicitors |
| 360 Bay Street, Suite 401 |
| Toronto, Ontario |
| M5H 2V6 |
| For the Applicants |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 19980908
Docket: IMM-4444-97
Between:
| SOHAYL FAROUK S. ELBARBARI |
| (a.k.a. Sohail Farouk Elbarbari) |
| and |
| SAMER FAROUK ELBARBARI |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER