Date: 20010427
Docket: IMM-3327-00
Neutral citation: 2001 FCT 405
Ottawa, Ontario, Friday the 27th day of April 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Nawal El Ali brings this application for judicial review from the decision, dated May 30, 2000, of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which determined that she is not a Convention refugee.
[2] Ms. Ali asserts two errors on the part of the CRDD:
1. It misunderstood the basis of her claim and therefore failed to have regard to relevant corroborating documentary evidence;
2. It breached the principles of natural justice in reaching its decision by relying upon an issue not identified as being an issue at any point during the hearing.
[3] Having read the reasons of the CRDD and the transcript of the proceedings before it, I am satisfied that the CRDD understood the basis of Ms. Ali's claim, which the CRDD correctly articulated in its reasons. The transcript of the hearing records that the CRDD did consider the documentary evidence presented by the applicant and did appear to understand that evidence.
[4] Of more substance is the second error asserted by Ms. Ali.
[5] Consideration of this issue requires a careful analysis of the reasons of the CRDD. In material part they were as follows:
The panel does not believe that the claimant genuinely fears persecution at the hands of her father. It finds the claimant's behaviour to seriously belie her alleged fear. The claimant is a confident, assertive individual. The panel believes that while she may have had "words" with her father, and perhaps even been threatened and slapped by him, it does not believe she did in the past, or would in the future, face serious harm at his hands. The panel bases this finding on its assessment of the facts, including the claimant's course of action over the last fifteen years.
In her PIF the claimant says that "my father used to continuously harass me by asking me to get married and to stay at home; at the end, he threatened to kill me and he beat me..." and "my father became increasingly more and more abusive in his manner to convince me to marry someone" also; "he was forcing me to marry other people from the family... however... I avoided entering into a marital relationship with anyone."
Orally she stated that if she returned to Lebanon her "father would probably kill me". This statement did not, in the view of the panel, carry much conviction. When asked about the beating she had referred to, she stated that her father once hit her on the back with a piece of wood but she had never needed medical attention.
The fact is, that although the claimant stated orally that her father believed a woman's place was at home and that she should not work or exercise any personal individual opinion, the claimant left home to live and study abroad, and when she returned to Lebanon, she worked continuously outside the home. Not only did her father not compel her to remain under his roof, he paid for her education, and clearly either did not or could not interfere with her pursuing her professional career outside the home for five years. Furthermore, he never actually forced her to marry anybody. She refused and that was the end of it.
The panel finds the claimant's behaviour re: leaving Lebanon and coming to Canada to seriously undermine her alleged subjective fear. Her PIF states that "until I came to Canada in November 1998 I was trying desperately to leave Lebanon; to no avail, until the opportunity presented itself to leave Lebanon to Canada, although illegally." The claimant's oral evidence revealed this statement to be fundamentally misleading. In the first place, although not referred to in the PIF, it transpired that the claimant had in fact left Lebanon totally legally on a Hungarian Visitor's Visa. The claimant's brother is a doctor in Hungary and the claimant traveled [sic] there in September 1998, to have her artificial limb replaced, something she had done also in 1986 and 1990. She did not leave Lebanon fleeing persecution. She stated orally that she went for her medical appointment some nine or ten months after the last suitor had been rejected. This hardly suggests a "desperate attempt to leave" by the claimant. When asked why she delayed leaving, she stated she was waiting for the summer vacation. Neither did she leave with the intent to seek refuge in Hungary at the time or even to use Hungary as a stop to elsewhere. She stated orally that when she left for Hungary in September 1998, she intended to return to Lebanon. Only once in Hungary did she have the idea and then the plan to continue on to Canada. As she stated orally, when the opportunity came up, she took it. Even once she made her way to Canada she did not claim refugee status. She stated that she only came up with the idea of claiming after speaking with friends of her brother and sister-in-law here in Canada. The panel finds the claimant's course of action to undermine her alleged fear of persecution. She is an intelligent educated young woman capable of having made the requisite inquiries.
When asked whether she had informed her family of her marriage, the claimant stated that she had not. She claimed it would make no difference to her father that she was now married because "he wouldn't be happy because he doesn't know the young man and wasn't informed as to his status, family background etc." She testified to not wanting the confrontation with her father. This does not add up to anything like a fear of persecution in the eyes of the panel. The claimant conceded that she is a strong-willed individual and that her father knows exactly whom he is dealing with. In fact, the panel does not believe that the claimant's family does not know of her marriage to a fellow Palestinian. Her brother is here in Canada and has contact with his parents. The claimant is not a child but a thirty-three-year-old woman who has earned her own way for years.
[6] At issue is the reliance of the CRDD upon Ms. Ali's delay in leaving Lebanon in circumstances where at no point was Ms. Ali notified that delay would be an issue before the CRDD.
[7] The CRDD is obliged to apply the principles of natural justice, one of which is that an applicant is entitled to know the case to be met. Thus, in El-Bahisi v. Canada (Minister of Employment and Immigration) (1994), 72 F.T.R. 117 (F.C.T.D.), a decision of the CRDD was set aside where the CRDD failed to give notice to the claimant that it intended to consider the issue of changed circumstances.
[8] Here, the CRDD File Screening Form advised Ms. Ali that the issues to be considered were credibility, personal identity, destruction of documents, internal flight alternative, and state protection. The same issues were identified by the CRDD at the outset of the hearing. Notably, the issue of the subjective component of a well-founded fear of persecution was not stated to be an issue generally, nor were the specific components of delay or failure to claim elsewhere noted as being in issue.
[9] After hearing the oral evidence the CRDD narrowed the issues that it wished to hear submissions on by advising that it did not need to hear submissions on identity and destruction of documents. Again delay was not articulated to be an issue by the CRDD.
[10] It was argued by the respondent that the CRDD was not obliged to alert Ms. Ali of the weaknesses in her testimony where the onus was on her to provide convincing evidence in support of her claim. However, in circumstances where Ms. Ali's testimony was in effect defined by the CRDD File Screening Form and by the initial comments of the panel directing counsel to the issues it wished to hear testimony upon I do not find the respondent's submission to be apt.
[11] In that circumstance, and particularly where the CRDD after hearing the applicant's testimony still failed to raise delay or the applicant's subjective fear as an issue, I find that Ms. Ali was denied the opportunity to answer the case against her and that a breach of natural justice occurred.
[12] While a breach of natural justice normally voids a hearing and requires a new hearing an exception to this rule was recognized by the Supreme Court of Canada in Mobile Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202. There the Court stated, at page 228, that it may be justifiable to disregard a breach of natural justice where "the demerits of the claim are such that it would in any case be hopeless". This decision was followed in Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (F.C.A.).
[13] In my view, a careful reading of the decision as recited above leads to the conclusion that there were abundant other reasons supporting the panel's conclusion that Ms. Ali did not have a genuine fear of persecution at the hands of her father. Those reasons included her avoidance of marriage despite her father's urging, and the fact that her father had not compelled her to live under his roof, paid for her education abroad, and could or did not interfere with her pursuit of a professional career outside the home. Those findings were well supported by the evidence. In view of those findings, I am satisfied that the CRDD would have without doubt reached the same conclusion even if it had not considered the issue of delay. I cannot, therefore, conclude that the breach of natural justice affected the final decision of the CRDD.
[14] In the result, in the exercise of my discretion, I determine that the application for judicial review should be dismissed.
[15] Counsel posed no question for certification.
ORDER
[16] IT IS THEREFORE ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"