Date: 20050610
Docket: IMM-9634-04
Citation: 2005 FC 831
BETWEEN:
SLEIMAN EL RAFIH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. El Rafih went into the refugee hearing as a Colombian alleging fear of persecution from FARC (Revolutionary Armed Forces of Colombia). He left as a Lebanese citizen with it having been found that he had no basis for fearing any persecution there.
[2] This case is concerned with countries of reference. It is clear law that even if one has a well-established fear of persecution in one country, one is disentitled to seek refugee status in Canada if, through dual nationality, dual citizenship or habitual residence, there is another country which is obliged to accept him, a country which does not pose a fear of persecution on one of the five grounds set forth in the United Nations Convention and in section 96 of the Immigration and Refugee Protection Act, 2001 S.C., c.27.
[3] During the refugee hearing, the Panel raised the possibility that Mr. El Rafih was not only a citizen of Colombia but also entitled to Lebanese citizenship based on his father's citizenship. It is common ground that his father, although now living in Colombia, is a Lebanese citizen.
[4] Mr. El Rafih's counsel requested a two-week postponement to consider these issues which was granted. He then requested a further postponement, which was denied.
[5] The Panel found on the balance of probabilities that according to Lebanese law, a father automatically transmits his Lebanese citizenship to his children, and that Lebanon recognized the principle of dual nationality.
[6] The Panel then found there was insufficient credible and trustworthy evidence to establish the claimant had a well-founded fear of persecution in Lebanon today. His evidence was that he had visited Lebanon in 1986, when he was 12 years old, and stayed there for approximately 18 months. He stayed with his father's family and was unhappy because he had duties on the farm and his grandfather was set in his ways. He also expressed fear based on his family's treatment from Syrians.
[7] The main thrust of Mr. El Rafih's application for judicial review is that he was not given proper opportunity to make his case. The Minister argues that he was given a fair hearing but that, in any event, the granting of a delay would not make any difference. I have concluded that the Minister is half right and half wrong.
[8] I see no reason to disturb the Panel's finding that Mr. El Rafih would not be at risk of persecution if he were to return to Lebanon. I was asked to take judicial notice of the fact that the Syrian Forces have left Lebanon. It is not necessary, or appropriate, for me to make a judicial finding in that regard. After all, it is the Panel, and not the Court, which is supposed to be expert in country conditions. The Panel's finding in this regard was well reasoned. A delay of two weeks was not an unreasonable delay to allow Mr. El Rafih to set forth his previous experiences in Lebanon, none of which it can be argued serves as a ground for claiming refugee status. Even if Mr. El Rafih's right to be fully heard was denied, there is no remedy, as there could not have been a different outcome. (Mobil Oil Canada Ltd. v. Canada - Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202.)
[9] However, this begs the real question, which is whether Lebanon is a country of reference. Mr. El Rafih and his counsel were clearly taken by surprise. The citizenship of his parents had been set forth in his Personal Information Form and in the Refugee Protection Division screening form, prepared by the Board, which must be disclosed to counsel, there was no notice that a country of reference would be in issue.
[10] Citizenship, including dual citizenship, is a complicated issue under international law. National laws may change. Our own laws have undergone dramatic changes over the years (see Wilson v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1874).
[11] The relevant information the Panel provided Mr. El Rafih's counsel at the original hearing went back to 1999 and earlier, and included an interview with an official of the Lebanese Embassy in Ottawa in 1995. The issue is not what the law was in 1995, or even 1999, but rather what it is in 2005.
[12] Mr. El Rafih's request that the delay of two weeks be extended was reasonable, and in the circumstances the refusal to grant a further extension constituted a denial of natural justice.
[13] In Chalal v. Canada (Minister of Citizenship and Immigration), 2003 FCT 345, [2003] F.C.J. No. 497, Blanchard J. noted at paragraph 4 that this Court has held many times that procedural fairness requires that disclosure be made to the applicant within a reasonable period of time prior to the hearing in order to allow counsel to be well informed about the allegations against the applicant and to make full answer and defence.
[14] He also referred to the seminal decision of the Supreme Court in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, where Mr. Justice Le Dain stated at page 661:
... I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
[15] Although the pragmatic and functional approach to judicial review might suggest that the finding of Lebanon as a country of reference was at the very least a mixed question of fact and law and should stand unless unreasonable, that approach does not apply to questions of procedural fairness. The standard of review is applied to the decision as opposed to the procedural framework in which the decision is made (Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539.) Questions of procedural fairness are questions of law and subject to review if incorrect. (Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195 (C.A.); Mani v. Canada (Minister of Citizenship and Immigration), 2004 FC 376, [2004] F.C.J. No. 454 (QL); Aslam v. Canada (Minister of Citizenship and Immigration), 2004 FC 514, [2004] F.C.J. No. 620 (QL)).
[16] In the circumstances I am granting judicial review, but only on the country of reference issue, and should it turn out that Lebanon is not a country of reference for a determination as to whether Mr. El Rafih has a well-founded fear of persecution should he be returned to Colombia. It should not be difficult for the parties, particularly Mr. El Rafih, to get an update from the Lebanese Embassy as to his status in that country.
[17] There is no question of general importance to certify.
"Sean Harrington"
Judge
Ottawa, Ontario
June 10, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9634-04
STYLE OF CAUSE: SLEIMAN EL RAFIH
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: JUNE 8, 2005
REASONS FOR ORDER: HARRINGTON J.
DATED: JUNE 10, 2005
APPEARANCES:
Mr. Nico G.J. Breed FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Spier Harben
Calgary, Alberta FOR APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT