Date: 20031014
Docket: IMM-2580-02
Citation: 2003 FC 1191
Ottawa, Ontario, this 14th day of October, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
GHRIBI Abdelkarim Ben
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), rendered May 14, 2002.
Facts
[2] Abdelkarim Ben Ghribi is a 29-year-old former university student from Tunisia. He claims to have a well-founded fear of persecution on the basis of his imputed political opinion, as a member of "El Mouatazla El Jedoud" ("EMEJ"), an Islamic group. The applicant claims that he fears persecution from the Tunisian police.
[3] In February 1996, the applicant began participating in meetings of EMEJ, a group of about 30 people who seek to discuss and clarify ideas about Islam. On April 5, 1996, the applicant was stopped by police after an EMEJ meeting held at a mosque. He was kicked and struck with a wooden stick, and then detained for four hours. He was then forced to sign a declaration to forsake political activities.
[4] On January 15, 1997, the applicant states that he was accused by police of holding meetings that were prohibited by university rules. In November 1998, the head of EMEJ, an imam, was detained.
[5] On February 14, 2000, the applicant's evidence is that he was stopped by the police along with 24 other EMEJ members. He was beaten and accused of attempting to secure revolution and political change, and detained for 24 hours. With the help of a friend, he escaped police custody. The applicant decided to leave the country and secured a passport on May 10, 2000, and a Canadian visa on September 5, 2000. He left Tunisia on September 12, 2000, and arrived in Canada via France on the same day. He claimed refugee status in Canada on December 11, 2000.
Board's Decision
[6] The Board outlined the applicant's story as described above. The Board held that the applicant had not demonstrated a well-founded fear of persecution. The applicant stated that he decided to seek protection from an European country in the spring of 2000, but later stated that his stay in France was only a stopover. He stated that he did not claim refugee status sooner because he was not aware of the procedures. The Board did not accept these responses, and noted that the applicant waited many months to leave Tunisia, finishing off his school year prior to leaving. The Board also noted that the applicant waited three months before claiming refugee status in Canada, and drew an adverse credibility finding as a result.
[7] The Board stated that it had no documentary evidence concerning the EMEJ organization and found it difficult to establish the nature of the organization. The Board noted that the applicant had no membership card, nor any other document relating to the organization. The Board concluded that the group seemed "marginal".
[8] The Board noted that the applicant added to his written evidence additional elements on oral testimony. The applicant testified that he had been stopped by police during a meeting of the "Union générale des étudiants tunisiens" and other groups. The applicant testified that he received 5 or 6 summonses from the police between 1997 and 2000 and that the authorities questioned him about the objectives of the EMEJ at these meetings. These incidents were not mentioned in the Personal Information Form (PIF) narrative. In addition, the Board noted that copies of two summonses dated March 21, 2000, and December 15, 1998, were submitted only at the start of the hearing, reportedly brought by a friend from Tunisia. The Board stated that the applicant ought to have delivered them sooner and mentioned them in his PIF narrative.
[9] Finally, the Board noted that the applicant stated at the hearing that he had been under "surveillance administrative" and had to report his movements to police and that this was not mentioned in his PIF narrative.
[10] The Board drew an adverse credibility finding from the fact that major elements revealed in testimony - the incident at the combined meeting, the existence of the summonses, and the fact of police surveillance - were not outlined in the PIF narrative. The Board stated that it was of the view that the applicant added these details to give more weight to his claim. The Board quoted Basseghi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1867 (QL), for the proposition that an applicant must provide all pertinent details in his PIF narrative and expand on them during oral testimony.
[11] The Board noted that the documentary evidence suggests that the Tunisian government does not hesitate to interfere in the lives of citizens, but that in this case the applicant was able to finish his university studies, obtain a passport, and leave the country unhindered, all of which conflict with the documentary evidence which suggest much tighter state controls over individuals accused of being political activists. The Board concluded that it did not believe the applicant's story of persecution and held that he was not a Convention refugee.
Issues
[12] The applicant raises the following issues on judicial review:
(i) Did the applicant receive a fair and impartial hearing because the Board adopted an unfavourable view of the applicant or ignored his evidence?
(ii) Did the Board fail to consider arguments raised during the hearing that the applicant was a refugee "sur place"?
Analysis
(i) Did the applicant receive a fair and impartial hearing because the Board adopted an unfavourable view of the applicant or ignored his evidence?
[13] The applicant submits that the Board demonstrated a sceptical attitude and bad faith in its analysis of his claim.
[14] The applicant argues that the following questions raised by the panel member at the outset of the hearing appear to prejudge the applicant's testimony :
(i) Que si la décision du requérant (de quitter la Tunisie) avait été pris, au printemps pourquoi ne quitte t-il son pays qu'à l'automne?;
(ii) Au niveau de la crainte (subjective), il passe par la France mais ne revendique pas;
(iii) Il ne revendique qu'après 3 mois au Canada;
(iv) le groupe (dont faisait partie le demandeur) était-il ou non autorisé par l'école?
(v) L'incident du 14 février, Comment a t-il pu quitter le poste de police?
(vi) au niveau de la crédibilité, alors qu'il était persécuté, il semble continuer son travail depuis plusieurs années, bien que certains membres soient emprisonnés.
The applicant argues that the above questions by the panel member are actually negative and judgmental comments, since they were posed before the applicant's testimony on the matters. The applicant therefore submits that the panel member exhibited flagrant prejudice from the start of the hearing.
[15] In addition, the applicant submits that the Board ignored his evidence as to the existence and nature of EMEJ in stating that the group was not to be found anywhere in the documentary evidence. The applicant also suggests that the Board's conclusions about the applicant's delay in leaving Tunisia and in claiming refugee status in Canada are ill-founded, since it is not rare for claimants to wait 5-6 months to claim status on account of their lack of knowledge of the refugee system.
[16] The respondent submits that arguments concerning apprehension of bias must be submitted at the first opportunity: Del Moral v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 782 (QL). The respondent argues that the applicant should have raised the issue of bias during the course of the hearing and he did not, and that the issue of bias cannot be raised for the first time on application for judicial review.
[17] In Del Moral, supra, the applicant's counsel had not objected nor raised any issues of bias during the hearing proceedings. Dubé J. stated that a party alleging a reasonably apprehension of bias on the part of a tribunal must raise a violation of natural justice at the earliest practicable opportunity.
[18] The Supreme Court of Canada in [1978] 1 S.C.R. 369">Comm. for Justice v. National Energy Board, [1978] 1 S.C.R. 369 at page 394 expressed the proper test to be applied when considering reasonable apprehension of bias as follows:
....What would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think it is more likely than not that [the Tribunal], whether consciously or unconsciously, would not decide fairly.
[19] I note that the applicant's counsel referred to the issue of bias during his submissions at the close of the hearing, in the following terms:
La première chose qui me saute aux yeux c'est peut-être plus les derniers temps, on dirait que l'audition est beaucoup moins impartiale, beaucoup moins neutre que jadis, c'est peut-être un des commentaires que moi j'ai. On vit dans des temps difficiles à l'aube d'une nouvelle loi, on sait tous, dans un contexte très particulier ...
[20] I do not find that this passage directly raises the issue of bias, although it refers to the hearing as being less impartial than in the past. I find this statement to be vague, and am of the view that the issue of bias was not adequately raised during the hearing. Further, even if the allegation had been clearly raised during the hearing, I find that a careful review of the hearing transcript does not reveal a reasonable apprehension of bias or indicate a negative predisposition on the part of the panel member. I do not find that the questions posed by the panel member that are referred to by the applicant are indicative of bias. They are rather legitimate observations made by the panel member based on the written narrative of the applicant. Moreover, by having these concerns raised at the outset of the hearing, the applicant is informed of the Board's concerns with respect to the applicant's narrative and has the opportunity to respond. Upon application of the test set out by the Supreme Court in Comm. For Justice, supra, I conclude that the allegations of bias raised by the applicant are without merit. Consequently, I find that the applicant was not denied natural justice as alleged.
[21] I also reject the applicant's argument that the Board failed to consider the applicant's evidence that EMEJ existed or that he did not claim refugee status earlier because of his lack of knowledge about the system. It is clear that this evidence was considered by the Board since it was mentioned in its reasons. In my view, it was open to the Board to weigh and assess this evidence as it did.
(ii) Did the Board fail to consider arguments raised during the hearing that the applicant was a refugee "sur place"?
[22] The applicant submits that the Board erred in failing to consider arguments that the applicant is a refugee "sur place", a person who becomes a refugee due to circumstances arising in his country during his absence. The applicant argues that the whole concept of a refugee "sur place" requires an assessment of the situation in the applicant's country of origin after he or she has left it. See Ghazizadeh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 465 (QL).
[23] During the hearing, the applicant testified that in mid-February 2002 the Canadian Minister of Citizenship and Immigration made a public declaration that 150 Tunisians had entered Canada as visitors in 2000 and were then lost or claimed refugee status. The applicant argues that, after this public announcement, Canadian officials approached Tunisian authorities in Canada in an effort to identify and find those Tunisians who had obtained Canadian visas in 2000. It is alleged by the applicant that this information was communicated to security forces in Tunisia who would have, as a result, verified lists of students travelling to Canada in 2000. The applicant further submits that he testified that two police officers visited his father and asked about the applicant's whereabouts, and that his father told them that he had travelled to Canada in the summer of 2000.
[24] The applicant submits that, during the hearing, his counsel raised the argument that the applicant was a refugee "sur place" as a result of the actions of the Minister and the response of the Tunisian authorities. The applicant consequently argues that the public statements of a Canadian minister concerning Tunisian refugee claimants have the effect of potentially subjecting him to scrutiny from the Tunisian authorities on his return, thereby making him a refugee "sur place". The applicant argues that the Board's failure to consider the argument that he is a refugee sur place amounts to an error of law.
[25] During the hearing, the applicant testified as follows:
À la mi-février, en 2002, après la déclaration du ministère ... du ministère de l'Immigration canadianne qu'après cette déclaration qui faisait référence à 150 Tunisiens que les autorités canadiennes ont perdu de vue et que ce group-là est arrivé durant l'été 2000, c'est-à-dire moi parmi ce groupe-là, ils ont donné comme une statistique comme quoi 75 parmi ceux-là ont présenté une demande de refuge et les autres ne l'ont pas fait. Et bien sûr, le ... le consulat ... l'ambassade tunisienne ici a pris .. a pris connaissance de ça, ce qui veut dire que les autorités tunisiennes le savent aussi, alors ils ont ... ils ont vérifié les ... les listes des étudiants qui ont voyagé durant l'été 2000, ils ont vérifié ça sur l'ordinateur et ils ont quitté là-bas.
(Emphasis added)
[26] The respondent submits that the applicant's assertions about the Minister's public comments as noted in counsel's memorandum of fact and law are not supported by an affidavit of the applicant as required by paragraph 10(2)(d) of the Federal Court Immigration Rules, 1993, SOR/93-22, as am. SOR/98-235. The respondent submits that the allegations concerning the Immigration Minister's public comments are therefore not evidence properly submitted and should not be considered.
[27] I find the testimony of the applicant concerning the Minister's public statements and the consequent response of Tunisian authorities in Canada and in Tunisia to be highly speculative and based only on his suppositions concerning what might have happened (see the underlined passage in paragraph 25 of these reasons). There is insufficient evidence to establish that the Minister's statement would have had the alleged impact so as to support a claim of refugee "sur place" by the applicant. The applicant's testimony is speculative and the allegations and arguments put forward by Counsel, in his memorandum of fact and law are of little help since these are not supported by the applicant's affidavit in this application.
[28] The respondent further submits that the applicant's argument that the Board failed to consider counsel's arguments on refugee "sur place" must fail, in any event, since the Board did not believe the applicant's story. The respondent cites Barry v. Canada (Minister of Citizenship and Immigration), 2002 FCT 203, [2002] F.C.J. No. 266 (QL) for the proposition that the Board is not required to consider refugee "sur place" arguments where the refugee claimant's story has been judged not to be credible.
[29] I agree with the respondent's submission. A tribunal is not required to address arguments concerning refugee "sur place" where the applicant has been judged not to have presented any credible evidence substantiating his claim.
[30] In the present case the Board did not believe the applicant's story. It found the applicant not to be credible because he failed to include important elements of his claim in his written narrative, such as the fact that he had been issued police summonses five or six times and that he was put under surveillance by the Tunisian police. The Board also found that the applicant's behaviour was not compatible with that of a person fearing persecution. The applicant completed his studies before leaving Tunisia and delayed three months before making his claim in Canada. The Board found that this behaviour further undermined his credibility. As part of his argument on bias, the applicant argues that the Board's credibility findings are not justified since they are based on inconsequential omissions from his PIF which could have easily been verified. I disagree. Considering the totality of the evidence, I am of the view that the Board's credibility findings were open to it, and are not patently unreasonable.
[31] Consequently, in the circumstances of this case, where the applicant adduced no credible evidence to support his claim, the Board did not err by failing to further consider the "refugee sur place" claim. I therefore find, that the Board's failure to specifically address the refugee "sur place" issue in its reasons, is not a reviewable error.
Conclusion
[32] For the reasons outlined above, the application for judicial review will be dismissed.
[33] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board rendered May 14, 2002, is dismissed
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2580-02
STYLE OF CAUSE: Ghribi Abdelkarim Ben v. MCI
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: July 9, 2003
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: October 14, 2003
APPEARANCES:
Jean-François Fiset FOR APPLICANT
Diane Lemery FOR RESPONDENT
SOLICITORS OF RECORD:
Jean-François Fiset FOR APPLICANT
10, West St-Jacques
Montréal, Québec, H2Y 1L3
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Montréal, Québec H2Z 1X4
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