Date: 20050927
Docket: IMM-1782-05
Citation: 2005 FC 1311
Ottawa, Ontario, September 27, 2005
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
TAREK EL MASALATI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] A retelling of a narrative cannot become a substitute for the original version registered in the annals of the trier of fact.
This Court can only review the first record and determine the degree of reasonableness, or lack thereof, accorded thereto.
In Law Society of New Brunswick v. Ryan, the Supreme Court of Canada explained the "standard of reasonableness". It held that "reasonableness" was whether the reasons, taken as a whole, were tenable as support for the decision.
JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (IRPA) of the decision of the Immigration and Refugee Board, Refugee Protection Division (Board) which, on March 1, 2005, dismissed the Applicant's claim for "refugee" status pursuant to section 96 and also that of a "person in need of protection" pursuant to subsection 97(1) of IRPA.
BACKGROUND
[3] A citizen of Libya, the Applicant, Mr. Tarek El Masalati, alleges a well-founded fear of persecution based on his imputed political opinion.
[4] The alleged facts, as described in Mr. Masalati's Personal Information Form (PIF) and Board's reasons, are as follows. Mr. Masalati's problems with the Libyan authorities stem from his association with Osama Mostafa Sallabi, his friend and brother-in-law (according to his PIF) or future brother-in-law (according to his oral testimony). Mr. Sallabi is a political dissident and as a result of his familial ties with Mr. Masalati, the latter is also believed by the Libyan authorities to be a political dissident.
[5] The Internal Security Police (ISP) came to Mr. Masalati's home to question him while he was absent. Days later, they discovered his work address and picked him up at his place of work for questioning. They wanted to know Mr. Sallabi's whereabouts and whether Mr. Masalati had contact with him. He told the security that he "did not know anything about him and that I did not have any contact with him whatsoever".
[6] Mr. Masalati was subsequently given the opportunity to travel to Canada on business through his company. He was issued a Canadian visa in Tunisia on December 11, 2002 with an expiry date of March 11, 2003. He left Libya on February 21, 2003 and arrived in Canada on the same day. He claimed for refugee status on March 17, 2003.
DECISION UNDER REVIEW
[7] The Board found Mr. Masalati's story not to be credible and listed several inconsistencies which led it to that conclusion. The Board also found that Mr. Masalati did not demonstrate a subjective fear of persecution.
ISSUES
[8] 1. Was it patently unreasonable for the Board to conclude the Applicant was not credible and lacked subjective fear?
2. Did the Applicant have a fair hearing before the Board?
ANALYSIS
1. Was it patently unreasonable for the Board to conclude the Applicant was not credible and lacked subjective fear?
[9] Where credibility is at stake, the Board's mistake must be patently unreasonable for this Court to intervene (Aguebor v. Canada (Minister of Employment and Immigration), Pissareva v. Canada(Minister of Citizenship and Immigration), Singh v. Canada(Minister of Citizenship and Immigration)). The same standard of review applies to the issue of subjective fear of persecution, as it requires purely factual findings (R.K.L. v. Canada(Minister of Citizenship and Immigration)).
[10] The Board found that Mr. Masalati had omitted several significant events from his PIF. It is well established that the Board is entitled to draw adverse credibility findings from the omission of critical facts in a claimant's PIF (Robles v. Canada(Minister of Citizenship and Immigration)). The PIF clearly instructed Mr. Malasati to state "all significant events and reasons" that caused him to seek protection in Canada. The PIF indicates that Mr. Malasati had the assistance of an interpreter when the PIF was completed. The interpreter signed a statement saying that he fully understands English and the Arabic language, that he fully communicated with Mr. Masalati and that Mr. Masalati fully understood the entire contents of the PIF.
[11] The Board found that Mr. Masalati did not mention in his PIF that on May 19, 2001 he was taken from work by four ISP men dressed in civilian clothing or that he had been physically abused while being questioned. The second omission involved an alleged second interrogation by the ISP where Mr. Masalati told them that Mr. Sallabi was in Canada. The third omission involved another alleged ISP interrogation wherein the ISP wanted his collaboration. The fourth omission relates to two arrest warrants produced at the hearing.
[12] The Board determined that the arrest warrants were identical copies of the same document with the only difference being the dates handwritten on them. Further, the warrants did not indicate an address where Mr. Masalati was to report. Given the lack of interest in Mr. Masalati between 2001 and 2003, the Board reasonably found that it was not plausible for the ISP to summon Mr. Masalati or his father for interrogation after his departure from Libya nor was it plausible that the arrest warrants would not indicate a location where Mr. Masalati was to appear. Having said this, the Court agrees that the Board erroneously drew a negative inference from the fact that Mr. Masalati had not mentioned the September 16, 2004 arrest warrant in his PIF, since his PIF was completed and filed on April 28, 2003. It was humanly impossible to mention an arrest warrant that was not even in existence at the time. As for the April 24, 2003 arrest warrant, it could be said that Mr. Masalati was not necessarily aware of it since he was in Canada at the time. Nevertheless, the Court finds that this mistake is a minor one and that, given the numerous other negative credibility findings listed by the Board, Mr. Masalati's credibility was fatally undermined in any event.
[13] The omissions from Mr. Masalati's PIF are serious ones as they are key elements of his refugee claim. When asked to explain the omissions, he stated that he was tired after arriving in Canada, that he was worried about what to say and that he had difficulties with translation. The Board found these explanations unsatisfactory. The Board reasonably found that Mr. Masalati had embellished his claim given that he completed his PIF two months after arriving in Canada, his interpreter testified to being very comfortable with his own comprehension and verbal skills in English and the interpreter had successfully gone through the refugee process himself. The Board found that Mr. Masalati would not have omitted these serious allegations from his PIF had they been true. The Court finds that it was open to the Board to make an adverse credibility finding based on omissions of facts critical for Mr. Masalati's claim.
[14] With respect to the other credibility findings made by the Board, Mr. Masalati is basically asking this Court to reweigh the evidence. This is not the Court's role. No reviewable error was made.
[15] The Board also found that, since Mr. Masalati left and returned to Libya on three occasions prior to arriving in Canada but after his problems with the authorities on May 19, 2001 and since he did not claim refugee status as soon as he arrived in Canada, Mr. Masalati did not demonstrate a subjective fear of persecution. This conclusion was reasonably opened to the Board.
2. Did the Applicant have a fair hearing before the Board?
[16] Mr. Masalati argues that he might not have received adequate translation from the interpreter at the hearing. He has not argued that he had any trouble whatsoever understanding the translator during his hearing. He was asked if he understood the translator and he confirmed that he did. Since there is no evidence that Mr. Masalati objected to the quality of the interpretation at the earliest opportunity, i.e. during the hearing itself, he therefore cannot raise the issue for the first time in judicial review (Nsengiyumva v. Canada(Minister of Citizenship and Immigration)).
[17] Mr. Masalati also argues that the Board was biased against him. He gives the example, amongst others, of the September 16, 2004 arrest warrant that could not have been mentioned in his PIF but which was held against Mr. Masalati. Here again, the failure to raise an allegation of a reasonable apprehension of bias at the earliest possible moment forecloses the possibility of raising such an argument before this Court (Hernandez v. Canada(Minister of Citizenship and Immigration)). In any case, having reviewed the evidence on the record, the Court finds no trace of possible bias in the Board's attitude or reasons. It takes more than one or two minor mistakes by the Board to meet the very high threshold required for proving a reasonable apprehension of bias.
[18] Mr. Masalatu did not establish that he was denied a fair hearing.
CONCLUSION
[19] For these reasons, the Court answers the questions at issue in the negative. Consequently, the application for judicial review is dismissed.
ORDER
THIS COURT ORDERS
1. The judicial review be dismissed.
2. No question be certified.
"Michel M.J. Shore"
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