Date: 20051124
Docket: IMM-5930-04
Citation: 2005 FC 1592
Toronto, Ontario, this 24th day of November, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
YUSRA ABDULLA SALIM and
AIDA TARIQ (ALI) ABDULLA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated June 10, 2004, which determined that Yusra Salim (the "applicant") and her infant daughter, Aida Tariq Abdulla (collectively, the "applicants") are not Convention refugees or persons in need of protection.
[2] The applicants seek an order setting aside the decision of the Board.
Background
[3] The applicant originally claimed protection in conjunction with her husband. The couple, however, separated in April 2002. The Board ultimately disjoined the claims, allowing the applicant and her daughter to continue their claim independently. The claim of the applicant's daughter depends on the claim of the applicant. The applicant elected to continue to rely on the narrative set out in the Personal Information Form ("PIF") of her husband's application.
[4] The applicant, who is a citizen of Tanzania, asserted that she feared returning to Tanzania due to persecution that she suffered as a result of her and her husband's membership in the Civic United Front ("CUF"), an opposition party in Tanzania. The applicant was very active in the women's wing of the party. In December 1997, she was arrested and detained for five days on allegations that she had defamed the Urban Regional Commissioner. While in custody, she was "sexually humiliated" and ill-treated. She and her family did not flee at that time as it was important to the party that they stand strong and not appear to be intimidated. The applicant further asserted that in January 2001 her husband was arrested and detained for three weeks on allegations that he had organized a CUF demonstration. While her husband was being detained, the family home was raided and the applicant was beaten.
[5] In February 2001, after her husband's release, the applicant and her family went into hiding. On July 1, 2001 they made their way to Mombasa, Kenya. Eight weeks later, they arrived in Canada. The family claimed refugee status on August 27, 2001 upon their arrival.
[6] The applicants' claim was heard over two days: September 9, 2003 and March 24, 2004. At the September 9th hearing, the applicant informed the Board that she had spoken to her husband on July 31, 2003. He called her from a hotel where he was being detained by immigration officials pending his removal the same day. She visited him at the hotel and immigration officials told her that she could leave with him or remain in Canada to pursue her refugee claim. She chose the latter. She testified that she did not know at first why her husband was at the hotel. She also testified that she did not know that her husband had left Canada and was detained on July 31, 2003, when he returned to Canada.
[7] The Board dismissed the applicants' claim in a decision dated June 10, 2004. This is the judicial review of that decision.
Reasons of the Board
[8] The Board rejected the applicants' claim on the grounds that the applicant lacked credibility, in light of inconsistencies in the evidence and perceived implausibilities in the applicant's story.
[9] The applicant relied on the PIF narrative which was narrated by her husband in connection with their joint claim. The PIF narrative alleged that the applicant and her husband fled Tanzania because of the husband's alleged arrest and detention in 2001. The Board noted that at the time that the applicant's husband was allegedly released, the authorities in Zanzibar were engaging in a large-scale crackdown on CUF activists, in which hundreds of people were arrested and 2,000 Zanzibaris fled to Kenya. The Board found that it was implausible that the applicant's husband would have been released at that time, and concluded that he was not arrested for political reasons.
[10] The applicant also relied on a letter from the CUF in support of her claim. This letter read, in part:
Of the difficulties encountered by her include being placed under police custody in December 1997 where apart from other things, she was also physically tortured and sexually humiliated.
This situation forced Ms. Yusra to flee her country and her immediate families in order to save her life.
[11] The Board found the letter to be of no probative value because it failed to mention either the applicant's husband or his alleged detention and was therefore inconsistent with the statement made in the PIF narrative that the family had fled because of the husband's arrest in 2001. The Board did not accept the applicant's explanation that due to the breakdown in her relationship with her husband, she had not asked for any information pertaining to him.
[12] Further, the Board considered inconsistencies that appeared in the applicant's story when she was confronted with the allegations of her husband. At the first hearing before the Board, on September 9, 2003, the applicant's testimony was in accord with the allegations in the PIF. When the Board reconvened on March 24, 2004, the applicant was confronted with evidence which showed that her husband had left Canada and had made contradictory statements to immigration officials when he tried to re-enter the country. The husband apparently visited Tanzania between his departure from and return to Canada, and he initially professed to have come to Canada as a tourist when interviewed by immigration officials upon his return to Canada. He subsequently changed his story and alleged that his family had claimed refugee status because in Oman he was not allowed to marry a foreigner. He did not mention persecution in Tanzania.
[13] The Board noted that at that second hearing, the applicant apparently changed her story when confronted with her husband's inconsistent allegations. She testified:
My story just as I had told you, and I was informed with CUF, that yes they used to come and ransack my home, and because I was a party member I was involved with CUF activities, and my husband - yes, as I had told you that they would come and ransack my home, my husband was not there, he was working at the United Emirates. But, the time when we were entering to Canada and I was giving my story, that is the time because we were all as a family, he was basing his story on mine.
[14] The Board noted that the applicant had alleged that if her husband had changed his story, that was his decision to do so. The Board found it implausible that the applicant would not know that her husband had left Canada before he returned on July 31, 2003, given that she chose to rely on his narrative from the PIF.
[15] Overall, the Board found the applicant's claim to be replete with fabrication.
Issues
[16] The applicant raised the following issues:
1. Did the Board err in its credibility findings?
2. Was there a breach of natural justice in that the Board failed to give adequate notice of the issues at the second hearing, and failed to ensure that adequate translation was available during the hearing and an adequate recording was available following the hearing?
Applicant's Submissions
[17] The applicant submitted that the Board misconstrued the letter from CUF. It was submitted that the document referred to the 1997 arrest as one incident and not the only difficulty faced by the applicant.
[18] The applicant submitted that the Board made adverse credibility determinations by forcing the applicant to engage in speculation about the inconsistencies between the PIF and her husband's story as told to immigration officials following his return to Canada on July 31, 2003.
[19] The applicant made two arguments with respect to fairness and breach of natural justice. First, she submitted that the Board had failed to give her reasonable notice of the issues to be raised at the second hearing. Second, she submitted that there was inadequate translation at the hearing and that the recordings of the hearing were inaudible.
[20] The applicant directed the Court to a number of decisions with respect to notice and disclosure. In Siad v.Canada (Secretary of State), [1997] 1 F.C. 608 (C.A.), [1996] F.C.J. No. 1575 (QL), the Court held that the Minister has a duty to disclose information relevant to a refugee claim, but also found that if counsel found the disclosure to be inadequate, he should have objected to it before the hearing began. In Nrecaj v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 630, [1993] F.C.J. No. 699 (T.D.) (QL), the Court found there was inadequate disclosure in a situation where counsel for the applicant had specifically sought disclosure of certain documents by the Refugee Hearing Officer (the "RHO"), and the RHO had refused.
Respondent's Submissions
[21] The respondent pointed to the established principle that the Board is entitled to make a negative credibility finding based on contradictions and inconsistencies within a claimant's story or where a claimant's story is simply implausible. The respondent submitted that the Board did not err in law in making the credibility determinations in its decision.
[22] The respondent submitted that there was no evidence that the recording of the parts of the hearing concerning the issue of credibility, which was the crux of the Board's decision, was incomprehensible. The respondent noted that the applicants were complaining about only the portion of the recording that dealt with the disjoining of the claims.
[23] The respondent submitted that no serious issue was raised with respect to inadequacy of translation. The translator was asked to translate word for word at the portion of the hearing which dealt with the disjoiner of the refugee claims.
[24] The respondent submitted that counsel for the applicants did not raise any concerns about non-disclosure of issues for the second hearing, at that hearing, or in the further written submissions to the proceedings on that day.
Relevant Statutory Provisions
[25] Paragraph 95(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, provides that refugee protection is conferred on a person who is determined by the Board to be a Convention refugee or a person in need of protection.
| 95. (1) Refugee protection is conferred on a person when
. . .
(b) the Board determines the person to be a Convention refugee or a person in need of protection; or . . .
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95. (1) L'asile est la protection conférée à toute personne dès lors que, selon le cas:
. . .
b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; . . .
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[26] Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
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96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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Analysis and Decision
[27] Standard of Review
A high degree of deference is required with respect to credibility determinations. The appropriate standard of review for such determinations is patent unreasonableness, meaning that the findings of credibility must be supported by the evidence and must not be made capriciously or based on erroneous findings of fact (see Sivanathan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 500; Oyebade v. Canada (Minister of Citizenship and Immigration); 2001 FCT 773; Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.) (QL)).
[28] Issue 1
Did the Board err in its credibility findings?
The applicant's claim was based on the information contained in her husband's PIF. That information stated that the family left Tanzaniain July 2001 because of the husband's detention in January 2001. The applicant herself had been detained and sexually humiliated and ill-treated in December 1997. However, the applicant did not leave Tanzaniabecause of this incident. The Board member reconvened the hearing, with new information received from immigration officers that the applicant's husband was detained on his return to Canada in July 2003. The applicant's husband did not mention to the immigration officers his imprisonment in Tanzania in January 2001 but stated that his family had claimed refugee status because in Oman he was not allowed to marry a foreigner.
[29] When confronted with this information at the reconvened hearing, the applicant testified that her husband was in United Arab Emirates when he was supposed to, according to her testimony at the first hearing, have been imprisoned in Tanzania.
[30] The Board found the applicant lacked credibility because of this inconsistency in her testimony. I am of the view that it was not patently unreasonable for the Board to come to this conclusion.
[31] I am of the further view that this credibility finding alone is sufficient to defeat the applicant's claim.
[32] The Board also did not believe the applicant when she stated she did not know of her husband's whereabouts. I need not deal with this argument because of my previous finding on credibility.
[33] The applicant submitted that the Board erred in giving the CUF letter no probative value. Again, I will not deal with this matter because of my previous finding on credibility.
[34] Issue 2
Was there a breach of natural justice in that the Board failed to give adequate notice of the issues at the second hearing, and failed to ensure that adequate translation was available during the hearing and an adequate recording was available following the hearing?
The applicant submitted that there was a breach of natural justice because of the lack of disclosure of the issues at the second hearing. At the commencement of the second hearing, the Board asked counsel whether he had received the materials that formed the basis for the hearing and counsel indicated that he had. At no time did the applicant or her counsel indicate that they had not been adequately informed of the nature or basis of that hearing. Consequently, the applicant cannot rely on either Siad, supra or Nrecaj, supra, to now argue that there was a lack of disclosure constituting a breach of natural justice.
[35] The applicant also submitted that the translation and recording of the hearing were inadequate. The applicant was specifically complaining about the recording at the beginning of the second hearing when the Board was addressing the absence of her husband and issues of disjoiner and abandonment. These issues were not central to the applicants' claim, and the Board dealt with the disjoiner of the applications prior to addressing the substance of the applicants' claim. The applicant has not raised any further concerns with respect to the adequacy of either the translation or the recording. In Kandiah v. Canada(Minister of Employment and Immigration) (1992), 141 N.R. 232, [1992] F.C.J. No. 321 (C.A.) (QL), the Federal Court of Appeal held that a lack of adequate recording does not make an otherwise fair hearing unfair.
[36] Consequently, the applicant cannot succeed in an argument that there was a breach of natural justice in the Board's determination of their case.
[37] Before this Court, the applicant also raised the issue of the separation of claims. I note that the applicant in this matter did not object to the separation of her claim and her daughter's claim from her husband's claim. As well, I would note that this issue was not raised in the written materials. For these reasons, I will not allow the applicant to avail herself of this argument.
[38] The application for judicial review is therefore dismissed.
[39] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
ORDER
IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
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