Alhayek v. Canada (Minister of Citizenship and Immigration), (2012) 418 F.T.R. 144 (FC)

• Judge: O'Keefe, J.
• Court: Federal Court (Canada)
• Case Date: March 29, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 418 F.T.R. 144 (FC);2012 FC 1126

Alhayek v. Can. (M.C.I.) (2012), 418 F.T.R. 144 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. DE.067

Eman Hanna Alhayek, Nizar H. A. Alhayek, Hanna Alhayek, Majdi Nizar Alhayek and Fadi Alhayek (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-5843-11; 2012 FC 1126; 2012 CF 1126)

Indexed As: Alhayek v. Canada (Minister of Citizenship and Immigration)

Federal Court

O'Keefe, J.

September 25, 2012.

Summary:

The applicant family members, all citizens of Palestine from the West Bank, filed refugee claims based on the past persecution experienced by the principal applicant and fear of the Israeli army and Hamas. The Immigration and Refugee Board, Refugee Protection Division, determined that the applicants were neither Convention refugees nor persons in need of protection. The Board found that the applicants failed to submit credible and trustworthy evidence to establish a well-founded fear of persecution or serious harm upon their return to Palestine. The applicants applied for judicial review.

The Federal Court, on the standard of review of reasonableness, allowed the application. The Board erred in its credibility analysis.The court set aside the Board's decision and referred the matter back for redetermination by a differently constituted panel.

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - The applicant family members, all citizens of Palestine from the West Bank, filed refugee claims based on the past persecution experienced by the principal applicant and fear of the Israeli army and Hamas - The Immigration and Refugee Board, Refugee Protection Division, determined that the applicants were neither Convention refugees nor persons in need of protection - The Board found that the applicants failed to submit credible and trustworthy evidence to establish a well-founded fear of persecution or serious harm upon their return to Palestine - The Federal Court allowed the judicial review application - By not addressing the documentary evidence that supported the principal applicant's submissions and in light of the hearing transcript evidence, the Board erred in drawing a negative credibility inference on the principal applicant's statements regarding being detained for his political opinion versus being arrested as a criminal - The court therefore remitted the matter for redetermination by a differently constituted Board - See paragraphs 53 to 61.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 48].

Lubana v. Canada (Minister of Citizenship and Immigration) (2003), 228 F.T.R. 43; 2003 FCT 116, refd to. [para. 49].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 49].

Demirtas v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 370; 2011 FC 584, refd to. [para. 49].

Oluwafemi v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 624; 2009 FC 1045, refd to. [para. 49].

Khan v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 816; 2011 FC 1330, refd to. [para. 51].

Guarin Caicedo et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 732; 2010 FC 1092, refd to. [para. 52].

Bobic v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 863; 2004 FC 1488, refd to. [para. 52].

Richards v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 860; 2011 FC 1391, refd to. [para. 60].

Abdul v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 152; 2003 FCT 260, refd to. [para. 60].

Karayel v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 858; 2010 FC 1305, refd to. [para. 61].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 96, sect. 97 [Annex].

Counsel:

Lobat Sadrehashemi, for the applicants;

Helen Park, for the respondent.

Solicitors of Record:

Elgin Cannon & Associates, Vancouver, British Columbia, for the applicants;

Myles J. Kirvan, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application for judicial review was heard at Vancouver, British Columbia, on March 29, 2012, before O'Keefe, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated September 25, 2012, at Ottawa, Ontario.