Date: 20001110
Docket: IMM-5254-99
Ottawa, Ontario, the 10th day of November, 2000
Present: The Honourable Mr. Justice Pinard
Between:
REDHA BOUCHAIB
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision rendered on September 30, 1999 by the Refugee Division is set aside and the matter is returned to a differently constituted panel of the Division for reconsideration and redetermination.
| J. |
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20001110
Docket: IMM-5254-99
Between:
REDHA BOUCHAIB
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision rendered on September 30, 1999 by the Refugee Division of the Immigration and Refugee Board, ruling that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The applicant is a citizen of Algeria. He alleges that he left his country because of his refusal to perform military service. The following facts are taken from the panel's decision and the documentary record:
| -- The applicant was on deferment of military service from January 1993 to December 1997. |
| -- In February 1997, the applicant obtained a student visa to study at an American pilot's training school. He therefore went to live in the United States from March 2, 1997 to February 11, 1999. |
| -- Following a request made in December 1997, the applicant was informed by the Algerian Embassy in Washington that they could not provide him with a further deferment. However, they offered to convey his request to a recruitment office in Algeria if he would supply them with his most recent deferment and proof of his academic registration. |
| -- In February 1998, the applicant instead sent his expired military deferment and his school credit certificate to his father in Algeria. His father did not receive the letter, it is alleged. |
| -- In September 1998, the applicant was informed by an American lawyer that he could not claim refugee status in the United States since he had been there for more than a year. So he arrived in Canada on February 11, 1999, where he claimed refugee status the same day. |
[3] The Refugee Division rejected the applicant's application on the ground that there was insufficient evidence to establish that he had a well-founded fear of persecution. In the first place, the panel held that the applicant's failure to claim refugee status during his stay in the United States undermined his claim to a subjective fear. Although this is a significant factor to be considered in refugee claims, it is not a decisive factor in itself that can be examined in isolation (see Huerta v. Minister of Employment and Immigration (March 17, 1993), A-448-91 (F.C.A.)). The panel must also take into account the explanations provided, if any, and reject them if they are not sufficiently persuasive (see Hue v. Minister of Employment and Immigration (March 8, 1988), A-196-87 (F.C.A.)).
[4] In his testimony, the applicant explained that he felt totally secure during the 19 or 20 months he spent legally in the United States, that is, until late September or October, 1998. He explained that did not contemplate claiming refugee status in the United States until September 1998, that is, once his student visa in that country had expired. The applicant also explained that he had consulted a U.S. lawyer in September 1998 concerning a possible refugee claim. The panel reports all these explanations without comment.
[5] The Refugee Division also criticized the applicant for his failure to follow up on the Embassy's offer to pursue his deferment request. In this regard, the applicant explained in his testimony that he had to deal not with the Embassy but rather with an Algerian military office in Washington, describing the situation as follows at pages 1184 and 1185 of the panel record:
| [Translation] |
| ... I told him: "Sir, I wish to regularize my situation in regard to military service." The first thing I remember very, very clearly, he told me: "You are fleeing the country and you are trying to regularize your situation? ... |
| ... I said to myself, this guy, he is already threatening me... how can I send him some legal documents? ... he may tear them up, he had really made me very afraid. What I did was, I took my deferment, my certificate and I sent it to my father, which was a more... more secure route.... |
Again, this explanation went without comment.
[6] The panel also seems to find that the applicant did not cite any "[Translation] overwhelming reason" that would make him a conscientious objector. It explained its conclusion by the observation that the applicant "[Translation] does not correspond to the criteria described in the UNHCR guide (articles 167 to 171). The fear of being killed or killing does not make one a conscientious objector."
[7] But the applicant's evidence is not limited simply to fear of being killed or killing. He states the following in his Personal Information Form:
| [Translation] I refuse to be placed in situations in which I might have to commit highly reprehensible acts against my compatriots, men, women and children, acts ranging from mere bullying to rape, assassination, torture, etc. |
He repeats this aversion in his testimony:
| [Translation] In '94... a tank ran over a lady who was a doctor, crushing her. That is why I am afraid. The day when I return to Algeria, I will be obliged to commit some acts, to kill civilians, children, boys. My conscience ... does not allow me to do.... |
[8] These explanations, too, go without comment. The fear of killing or torturing some civilians may of course constitute a very serious factor to be considered in conscientious objection matters, if one takes into account the criteria described in the Handbook on Procedures and Criteria for Determining Refugee Status of the Office of the United Nations High Commissioner for Refugees (see also Zolfagharkhani v. Canada (M.E.I.), [1993] 3 F.C. 540 (F.C.A.)).
[9] Finally, the applicant submitted a large number of documents in support of his conscientious objection, describing acts of terrorism committed by the Algerian army. This documentary evidence likewise goes without comment in the decision. All of these omissions of the panel concern explanations provided by the applicant having to do with essential items in his claim, explanations which, to my way of thinking, warranted serious consideration. In view of the number and importance of these omissions, therefore, I am of the opinion that the applicant has discharged the onus of establishing that the panel rendered a decision based on a finding of fact made without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7).
[10] Consequently, the application for judicial review is allowed and the matter is returned to a differently constituted panel of the Refugee Division for reconsideration and redetermination.
| J. |
OTTAWA, ONTARIO
November 10, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: IMM-5254-99 |
| STYLE: REDHA BOUCHAIB v. MCI |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: OCTOBER 12, 2000 |
REASONS FOR ORDER OF PINARD J.
DATED: NOVEMBER 10, 2000
APPEARANCES:
DENIS GIRARD FOR THE APPLICANT
DANIEL LATULIPPE FOR THE RESPONDENT
SOLICITORS OF RECORD:
DENIS GIRARD FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada