Kadder v. Canada (Minister of Citizenship and Immigration), 2005 FC 837

Date: 20050614

Docket: IMM-10171-04

Citation: 2005 FC 837

OTTAWA, ONTARIO, JUNE 14, 2005

Present:           THE HONOURABLE JUSTICE LUC MARTINEAU                               

BETWEEN:

                                                       AIDER ABDEL KADDER

                                                                                                                                            Applicant

                                                                           and

                                               THE MINISTER OF CITIZENSHIP

                                                          AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board), dated November 16, 2004 wherein it found the applicant not to be a "Convention Refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the Immigration and Refugee Protection ct, S.C. 2001, c.27, (the IRPA) and accordingly rejected his claim for protection.

[2]                The applicant, a twenty-seven-year-old Kurd citizen of Iraq, arrived in Canada on August 31, 2001. At that time, the applicant's claim for protection was based on his fear of persecution at the hands of the Baath Party. According to the applicant, the Baath Party was actively looking for him because it thought that the applicant was a spy for the United Nations, the United States and the Kurdish Democratic Party. However, following Saddam Hussein's fall, the Baath Party was dissolved. Now, the applicant claims that he his a refugee "sur place" based on his fear of persecution at the hands of the Jobhad Turkoman Party. According to the applicant's story, his father and his uncles owned pieces of land in Misherian. However, same were occupied by Arabs at the time the Baath Party was in control and then by Turkmen after Saddam Hussein's fall. Following the said fall, one of the applicant's uncles returned to Misherian to claim the pieces of land. The Turkmen claimed they owned the land and presented false documents supporting their title. A fight erupted between the applicant's uncles, the applicant's brother and the Turkmen during which one man on each side was killed. Afterwards, the applicant's brother fled to Iran and one of the remaining uncles disappeared.

[3]                The applicant's testimony was critical in the case at bar since the applicant did not submit an amended written narrative of the new incidents that led to his fear to return to Iraq. The Board indicated in clear and unmistakable terms why it did not believe the applicant. Indeed, the negative inferences drawn by the Board are either based on a lack of details or on the contradictory or confusing answers given by the applicant during his testimony. Moreover, the Board noted that the applicant's wife and mother have lived in the city of Arbil without particular problems and that up until the date of the hearing, no one had asked or had searched for the applicant in Iraq. Accordingly, the Board concluded that the applicant did not successfully establish that he would be targeted by the Turkmen if he was to be returned to Iraq.

[4]                Despite applicant's counsel able presentation, as a whole, I find that the Board's decision is not subject to review since it is not patently unreasonable. Indeed, the appropriate standard of review on findings of fact and credibility is patent unreasonableness (Salehi v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1402; [2001] F.C.J. No. 1910 (F.C.T.D.) (QL)). The Board, as a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony. As long as the inferences drawn by the Board are not so unreasonable as to warrant intervention, its findings are not open to judicial review (Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (F.C.A.) (QL)).

[5]                More particularly, I note that the alleged killing of the applicant's uncle, the displacement of his brother and the disappearance of another uncle following the fight with the Turkmen were central to the applicant's refugee claim. It is apparent at the reading of the transcripts that the applicant was unable to provide credible evidence with respect to these events and was also unable to remember when these events really happened. In my view, the Board was entitled to draw negative inferences from the fact that the applicant first alleged that his uncle was killed in 2003 and then stated that he was killed in 2001. In addition, the Board could reasonably conclude that the applicant failed to prove that his uncle was indeed killed in a fight and that the death certificate was not conclusive. Furthermore, the Board was entitled to draw negative inferences from the fact that the applicant's testimony was inconsistent or confusing when it came to relevant details in connection with the pieces of land. Again, these inconsistencies are apparent from a simple reading of the transcripts.

[6]                Moreover, I find that the Board did not commit a reviewable error when it discarded a fax copy of the document for the Registry Department dated June 1, 2003. Considering the Board's general finding of lack of credibility, the Board was entitled to give very little or no probative value to the documentary evidence submitted by the applicant (Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.); Udeagbala v. Canada (Minister of Citizenship and Immigration), 2003 FC 1507 (T.D.)). As to the other errors allegedly committed by the Board, they are not determinative and they do not render the negative credibility finding patently unreasonable. In conclusion, this is not a case where the accumulation of errors justifies the intervention of the Court.

                                                                       ORDER

THIS COURT ORDERS that the present application for judicial review be dismissed. No question of general importance is raised and none shall be certified.

                                                                                                                                   "Luc Martineau"                       

                                                                                                                                                   Judge                                

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-10171-04

STYLE OF CAUSE:                          AIDER ABDEL KADDERv. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    MONTRÉAL, QUEBEC

DATE OF HEARING:                      JUNE 6, 2005

REASONS FOR ORDER

AND ORDER:                                  THE HONOURABLE MR. JUSTICE MARTINEAU

DATED:                                             June 14, 2005

APPEARANCES:

IDIRORENYIN E. AMANA                                                    FOR THE APPLICANT

LOUISE-MARIE COURTEMANCHE                                    FOR THE RESPONDENT

SOLICITORS OF RECORD:

IDIRORENYIN E. AMANA                                                    FOR THE APPLICANT

BARRISTER & SOLICITOR

MONTRÉAL, QUEBEC

JOHN H. SIMS, Q.C.                                                              FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA