Date: 20021204
Docket: IMM-5758-01
Montréal, Quebec, December 4, 2002
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
HAMED HAZARA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Application for judicial review of a decision by the Immigration and Refugee Board (IRB) dated November 16, 2001, by Refugee Division members Joan Kouri and Léon Graub, in docket MA1-00063.
[Section 82.1 of the Immigration Act]
ORDER
The application for judicial review is dismissed.
Danièle Tremblay-Lamer
Judge
Certified true translation
Mary Jo Egan, LLB
Date: 20021204
Docket: IMM-5758-01
Neutral Citation: 2002 FCT 1256
BETWEEN:
HAMED HAZARA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the panel) determining that the applicant is not a Convention refugee.
[2] The applicant, a citizen of Afghanistan, claims that he fears the Taliban by reason of perceived political opinion.
[3] He alleged the following facts before the panel.
[4] In October 1999, the Taliban entered the applicant's village and captured him and his father. The applicant was accused of giving financial support to the opposition and of participating in anti-Taliban activities.
[5] He and his father were held for two months. At the time of their release, the Taliban demanded 50 million afghanis from his father because he had a business. The applicant stated that the Taliban came for his father on December 10, 1999, and he has never returned.
[6] The same evening, the applicant was detained and interrogated. He was told that his father was dead and that he had been unable to provide the money that was demanded. The applicant was threatened with the same fate if he refused to pay. He was released in order to collect the money. He went to see his mother who told him that his father's business had been seized along with all of his money (between 30 and 40 million afghanis).
[7] The applicant fled Afghanistan on foot on December 22, 1999, and a week later he arrived in Pakistan.
[8] He arrived in Canada on November 25, 2000, and claimed refugee status on November 27, 2000.
[9] The panel rejected the applicant's claim on the following grounds: he had failed to establish that he is of Afghan nationality and Hazara origin and that he had lived in Afghanistan for 32 years; his behaviour did not demonstrate a subjective fear of persecution; and there were contradictions and improbabilities concerning major material facts in the applicant's claim.
[10] The panel's decision is based first on the fact that the applicant failed to establish his identity. This Court has held that a claimant must prove on a balance of probabilities that he is the person he claims to be (Yip v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1285). The panel stated that there were a number of factors that contributed to putting the applicant's identity and citizenship in doubt: the lack of an identity document; the lack of knowledge of significant events; and his inability to describe the Afghan flag. These factors were based entirely on the evidence in the record and justified the panel's finding.
[11] Moreover, the panel found that the applicant's behaviour demonstrated a lack of subjective fear of persecution, because he lived and worked in Pakistan for a year.
[12] This Court's jurisprudence has held that the applicant's failure to establish a subjective fear of persecution is a fatal flaw that warrants dismissing the claim (Tabet-Zatla v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1778; Anandasivam v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1519).
[13] Since the subjective element of his claim has not been established, there is no ground that would warrant the intervention of this Court. The application for judicial review is dismissed.
Danièle Tremblay-Lamer
J.F.C.C.
MONTRÉAL, QUEBEC
December 4, 2002
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021204
Docket: IMM-5758-01
Between:
HAMED HAZARA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: IMM-5758-01
STYLE OF CAUSE:
HAMED HAZARA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 4, 2002
REASONS FOR ORDER BY: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: December 4, 2002
APPEARANCES:
|
Eveline Fiset |
FOR THE APPLICANT |
|
Thi My Dung Tran |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Eveline Fiset Montréal, Québec |
FOR THE APPLICANT |
|
Morris Rosenberg Deputy Attorney General of Canada Montréal, Quebec |
FOR THE RESPONDENT |