2018 FC, 2018 FC 1177

Date: 20181121 Docket: IMM-2484-18 Citation: 2018 FC 1177 Vancouver, British Columbia, November 21, 2018 PRESENT: The Honourable Mr. Justice Harrington BETWEEN:THE MINISTER OF CITIZENSHIP AND IMMIGRATIONApplicantandOTHMAN AYED HAMDANRespondent JUDGMENT AND REASONS [1] Mr. Hamdan is an unmitigated liar. One must wonder if he has uttered one truthful word since he came to Canada in 2002. Hisrefugee claim was accepted in 2004.

The basis thereof was that he had converted to Christianity from Islam and faced a serious risk ofpersecution should he be returned to Jordan. [2] The Minister has taken, or is taking, various measures to remove Mr. Hamdan from Canada. This judicial review is limited to theImmigration and Refugee Board’s [IRB] dismissal of the Minister’s application that the decision granting him refugee status be vacatedin accordance with

section 109 of the Immigration and Refugee Protection Act [IRPA] on the basis that that decision to was obtainedboth as a result of directly and indirectly misrepresenting or withholding material facts relating to his claim. [3] More specifically the Minister submits that Mr. Hamdan’s alleged conversion to Christianity was bogus and that he had failed todisclose that he was an international drug smuggler. As such he was excluded from claiming refugee status because he had committed aserious non-political crime as set out in

section F(1)(

b) of the United Nations Convention Relating to the Status of Refugees, appended toIRPA. [4] The Board was of the view that the Minister did not meet the burden of proof. For the reasons that follow, I find that the decision ofthe IRB was unreasonable on both points and therefore am granting this application for judicial review. I. The IRB’s Decision [5] On the religion point, the Member found that Mr. Hamdan was always searching.

Although his subsequent conduct, including socialmedia posts in support of ISIS and lone wolf attackers was outrageous and was inconsistent with Christian belief, it did not necessarilyfollow that he was not a Christian at the time he applied for refugee protection. [6] On the drug smuggling point, Mr. Hamdan has over the years told outlandish stories to his "“stoner”" friends, and while he wasincarcerated to an undercover police officer. The story has changed over the years. He smuggled hashish or was it marijuana?

Was heshot at by Canadian snipers near the Israeli border, which is ridiculous; was he jailed in many jurisdictions? The Canadian authoritieswere unable to verify this latter allegation, perhaps because he used so many aliases. As one of his many friends says, "“We’ve alwaysthought he was just kind of full of s**t”". [7] Mr.

Hamdan’s counsel asserts that while he was lying through his teeth to his friends, he always told the truth in a more formalsetting such as when as he testified with respect to criminal charges against him in the British Columbia Courts, to a uniformed RCMPofficer, and to the Immigration authorities. II. Analysis [8] It was incumbent upon the Minister to provide evidence that Mr. Hamdan was lying when he claimed to be a Christian and toprovide evidence that Mr. Hamdan was actually engaged in international drug smuggling. As Mr.

Justice Rothstein speaking for theSupreme Court stated in FH v McDougall, 2008 SCC 53, 2008 3 SCR 41, at paragraph 48, it is up to a trial judge to assess whether theevidence established that it is more likely than not that the event occurred. "“However there can be no rule of law imposing such aformula”". [9] On the religion point, it is difficult to know what was going on in Mr. Hamdan’s mind.

However, in Grant v Australian KnittingMills Ltd., (UK JCPC), 1935, All ER Rep 209 (JCPC), Lord Wright stated at pages 213 and 214: Mathematical, or strict logical, demonstration is generally impossible: juries are in practice told that they must act on suchreasonable balance of probabilities as would suffice to determine a reasonable man to take a decision in the grave affairs oflife. Pieces of evidence, each by itself insufficient, may together constitute a sufficient whole, and justify by their combinedeffect a conclusion. [10] Mr.

Hamdan has testified that he was never baptized, could not remember the addresses of any of the churches he may have

allegedly attended in Canada, or the names of anyone who may have seen him at a Christian church. Baptism is at the heart ofChristianity. Based on the decision of this Court in Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), (FC), [1998] FCJ No 1425, it was incumbent upon the Member to explain away this inconsistency with Christian belief. [11] I find it was unreasonable for the Member to find other than that Mr. Hamdan was a Christian of convenience in order to get intoCanada. [12] On both the religion issue, and the drug smuggling issue, subsequent actions matter, and words mean something.

In Saint JohnTugboat Co. v Irving Refinery Ltd., (SCC), [1964] SCR 614, subsequent conduct was taken into consideration indetermining whether or not a contract had been made. [13] In my opinion, the heart of the Member’s decision on misrepresentation is found at paragraphs 38 and 39 of her decision whichread: [38] In order for me to find that misrepresentation took place, the Minister must establish that the alleged event actuallyhappened. If the smuggling never happened, the Respondent cannot be said to have misrepresented.

Therefore, before ananalysis on exclusion can be conducted, the Minister must provide sufficient credible evidence to establish that thesmuggling event took place. Based on the information before me, I find that the Minister has failed to establish that therespondent engaged in a non-political crime. [39] The Respondent's story of smuggling hashish can be described as sensational and grandiose. As pointed out by counsel,the Minister has failed to establish that any of the allegations made by the Respondent in this story are credible or could becredible.

The Minister did provide evidence of drug smuggling in the Middle East; however, said evidence fails to establishthat the Respondent's story is actually true. The fact that drug smuggling by Hamas takes place in the Middle East does notin any way validate the veracity of the Respondent's story. [14] It was not safe to ignore Mr. Hamdan’s bragging. Words mean something. In his application for refugee status, he claimed hefeared his uncles who were members of Hamas. [15] Given the activities of Hamas at the time with respect to drug smuggling, and Mr.

Hamdan’s consistent statements that he wasinvolved in drug smuggling, it was reasonable to infer he was telling the truth on this point. [16] Furthermore, when he applied for permanent resident status, he admitted that family members abroad had been convicted of crimesor offences in another country. [17] Although the evidence in this case may be somewhat scanty, there is some evidence to suggest that a misrepresentation had indeedtaken place. In context, scanty evidence can support an inference to find as a fact that an event actually occurred (Whirlpool Inc. v CamcoInc., 2000 SCC 67 , [2000] 2 SCR 1067.

The only evidence from Mr. Hamdan was his denial. The record clearly shows that hisword is not to be trusted so that the presumption he is telling the truth is rebutted (Maldonado v. Canada (M.E.I.), (FCA), [1980] 2 FC 302 (C.A.)). [18] For these reasons, judicial review is allowed and the matter is referred back to the IRB for redetermination before a new member,both with respect to religion and criminality. [19] More recently, the Minister has succeeded in having the IRB decide that there has been a cessation of refugee protection undersection 108 of IRPA.

An application for leave and for judicial review of that decision was recently filed. The record has yet to beperfected. If Mr. Hamdan does not succeed, then this judgment becomes moot. However, I am not about to speculate as to the outcome ofthat application. As matters now stand, the decision under this judicial review is not moot. JUDGMENT in IMM-2484-18 For reasons given, THIS COURT’S JUDGMENT is that the decision under review is set aside and the matter is referred back forredetermination by a different decision-maker.

There is no question to certify. “Sean Harrington” Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-2484-18 STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v OTHMAN AYEDHAMDANPLACE OF HEARING: VANCOUVER, BRITISH COLUMBIADATE OF HEARING: November 15, 2018JUDGMENT AND REASONS harrington J.

DATED: november 21, 2018 APPEARANCES : Cheryl Mitchell Aman Sanghera For The Applicant Peter Edelmann For The Respondent SOLICITORS OF RECORD : Attorney General of Canada Vancouver, British Columbia For The Applicant Edelmann & Company Barristers & Solicitors Vancouver, British Columbia For The Respondent