Date: 20050627
Docket: IMM-5830-04
Citation: 2005 FC 887
Ottawa, Ontario, this 27th day of June, 2005
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
NASR MOHAMED KASSAM AL-SHAIBIE
(Applicant)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
(Respondent)
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division (the "panel") of the Immigration and Refugee Board (the "IRB") dated May 3, 2004, wherein the Applicant was determined to not be a Convention refugee or a "person in need of protection" as defined by sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). The Applicant seeks to have this decision set aside, and that his refugee claim be sent back for redetermination before a newly-constituted panel.
ISSUE
[2] Did the panel fail to observe a principle of natural justice or procedural fairness, act without or beyond its jurisdiction, or otherwise base its decision on erroneous findings of fact or law in its determination that the Applicant was not a Convention refugee or a person in need of protection?
CONCLUSION
[3] For the reasons outlined below, there has been no error committed by the panel, and therefore this application for judicial review is denied.
BACKGROUND
[4] The Applicant, Nasr Mohamed Kassam Al-Shaibie (Mr. Al-Shaibie or Applicant), is a citizen of Yemen. He was born in 1969 in the north of Yemen, where he lived with his father, mother, and two brothers, until he was about eleven, when the family was forced to move to the south because of civil strife. In 1986, when the situation became more peaceful, the family returned to the north. All the members of his family were members of the socialist party of Yemen (the "Ishtiraki Party"), a party which traditionally enjoyed more popularity in the south of Yemen.
[5] In 1992, Mr. Al-Shaibie entered into a marriage with a Yemeni woman who was also an American citizen, and moved to the United States. A few years after his departure, hostilities once again broke out in Yemen and the country was gripped by civil war. At the end of the war, the Applicant claims that both his brothers were forced to flee Yemen as they had been members of the defeated southern army (in addition to their roles as members of the Ishtiraki Party), and therefore persons of interest to the Yemeni government. One brother, Ahmed, is currently in the United Arab Emirates (the "UAE"), while the other, Musa, is in the United States.
[6] Mr. Al-Shaibie's marriage broke down in 1995 and his wife discontinued her sponsorship of him. Despite numerous legal efforts on his behalf, by 2001 Mr. Al-Shaibie faced deportation back to Yemen. He then left the United States and came to Canada in February 2001, whereupon he claimed refugee status.
[7] Mr. Al-Shaibie claims that, while he had no reason to fear persecution in Yemen at the time of his departure in 1992, the situation in Yemen has changed since the civil war and he does now fear such treatment. He submits that, as a former member of the Ishtiraki Party (political opinion) and as a close relation of two persons actively being sought by the Yemeni government (membership in a particular social group, i.e., the family), his fear of persecution, should he be forced to return to Yemen, is well-founded. He claims that if he were to return to Yemen, the authorities would attempt to use him as a tool to force his brothers to return to the country. In addition, he claims to be a person in need of protection, by reason of danger of cruel and unusual treatment or punishment, and risk to life.
THE CONTESTED DECISION
[8] In an oral decision rendered May 3, 2004 (written decision dated June 9, 2004), the panel rejected the Applicant's claim on the grounds that he was not credible:
The panel has valid reasons to doubt and reject the truthfulness that arose in the claimant's evidence. These allegations do not meet the real test of the truth of a story of a witness that it be in harmony with the preponderance of the probabilities, which a practical and informed person would recognize as reasonable in that place and in those conditions. [See p.2 of the panel's decision.]
[9] The panel was skeptical of the Applicant's claim that he was a member of the Ishtiraki Party, or at least that he was a member of enough importance to be of any interest to the Yemeni government. The panel noted that not only did Mr. Al-Shaibie fail to provide any documentary evidence of his membership, he also seemed to have a poor understanding of the philosophies of the Ishtiraki Party. Therefore, while the panel recognized that many members of the Ishtiraki Party had been persecuted by the Yemeni authorities after the civil war, it found it unlikely that Mr. Al-Shaibie himself would be persecuted due to his political opinions.
[10] More importantly, the panel found it incredulous that Mr. Al-Shaibie had provided no proof of the existence of his brothers or of the roles that they allegedly had played in the civil war. According to the Applicant's testimony, he was in contact with both his brothers, yet he had no corroborating affidavits, pictures, nor other documentary evidence testifying as to their existence and/or activities. Further, the panel found it unbelievable that the families of the brothers (which are still in Yemen) have not been harassed by the Yemeni government.
[11] Finally, the panel noted that while there was documentary evidence indicating that former officers of the southern Yemen army face a possibility of mistreatment, there was nothing that indicated that family members of these officers would face any similar risk of persecution.
SUBMISSIONS
The Applicant
[12] The Applicant claims that, first, the panel erred when it stated that he had provided no documentary evidence as to his membership in the Ishtiraki Party, since his two membership cards were available at the hearing. Second, the Applicant takes issue with the fact that, at page 3 of its decision, the panel stated that Mr. Al-Shaibie's brothers were involved in the southern Sudan army and wanted by Sudanese officials, rather than Yemeni. Third, the panel erred in blaming the Applicant for the lack of photos or other documentary evidence attesting to the existence and activities of his brothers. In the Applicant's submission, this was a wholly unreasonable assumption for the panel to make given that the Applicant is a non-legally trained layperson. Further, the Applicant advised that he did not think obtaining information from the Ministry of Defence in Yemen, where his brother Musa worked until 1995, would be possible because of the length of time that had since passed. Finally, the Applicant claims that the panel made an unfair inference that his 1992 marriage was not bona fide, thereby tainting the perception of his motives for his current refugee claim.
The Respondent
[13] The Respondent, the Minister of Citizenship and Immigration (the "Minister" or Respondent), submits that the decision of the panel is not patently unreasonable and that the decision should therefore not be annulled. With respect to the Applicant's allegation that the panel erred in stating that he had not provided documentary evidence of his membership in the Istakari party, the Respondent claims that this is irrelevant, since the Applicant's claim was based on his membership in a particular social group rather than his alleged political opinion. As far as the panel's error in stating the brothers were involved with Sudan rather than Yemen, the Respondent notes that this error is immaterial to the ultimate decision since the panel seems to otherwise recognize that it is Yemen that is implicated. The Respondent further states that the panel was correct in finding the Applicant should have adduced evidence regarding his brothers, since the onus is on an applicant to make his case, and here, the Applicant's claim was contingent on his brothers' status in Yemen. Finally, the Respondent notes that the panel did not make any judgments on the Applicant's marriage or refugee claim, other than noting that following the discontinuation of his sponsorship, the Applicant faced deportation in the United States and subsequently claimed refugee status in Canada. Since the Applicant had not fully established the material aspects of his claim, the panel was correct to dismiss the his case.
ANALYSIS
[14] Decisions that are based on credibility findings are largely fact-based and thus subject to the standard of review of patent unreasonableness :
[T]he standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per LaForest J., at pages 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact-finding be patently unreasonable.
[See [1997] S.C.R. 793">C.U.P.E. Local 301 v. Montréal, [1997] S.C.R. 793 at para. 85. See also 2003 SCC 20">Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 52.]
The Board's decision
(a) Membership in the Ishtiraki Party of Yemen
[15] The Applicant claims that, at the hearing, his two membership cards (one as a youth member, one as an adult) were available. However, upon reviewing the tribunal record, the only identification document seems to be Mr. Al-Shaibie's passport. While Mr. Al-Shaibie has since filed his membership cards with the Court, on the basis of the evidence before me, it seems that these were in fact not before the tribunal.
[16] The panel's determination, then, that no documentary evidence was filed in support of his membership is reasonable, with one caveat: The panel itself notes that counsel for the Applicant had indicated he was due to receive a document attesting to the veracity of Mr. Al-Shaibie's membership in the Ishtiraki Party. Despite this, the panel determines that the Applicant was likely not a member of the party, indicating that "this claimant has been in this country since 2001 and would have had plenty of opportunity to present documentary evidence" (at page 2). This statement of the panel prejudges evidence not before it. Before making a determination that Mr. Al-Shaibie was not a member of the Ishtiraki Party of Yemen, the panel should have waited until the document in question was received and placed before it. It could have given a strict limited time-period in which the Applicant could have filed the document, therefore placing it in a better position when commenting on the issue of membership.
[17] However, this error is not, in and of itself, enough to vitiate the decision in its entirety. The panel further disbelieved Mr. Al-Shaibie's membership in the Ishtiraki Party of Yemen on the basis that he did not seem to have a good understanding of the philosophies of the party, or was at least unable to adequately explain these to the satisfaction of the tribunal. A review of the transcript of the hearing confirms this. Therefore, in the panel's view, even if Mr. Al-Shaibie was a member of the party, which it did not believe he was, he was not sufficiently involved with the party to attract the interest of the Yemeni government. Therefore, on the whole, the panel's conclusions as to his membership in the Ishtiraki Party of Yemen are reasonable.
(b) The panel's references to "Sudan"
[18] At page 3 of its decision, the panel refers to Mr. Al-Shaibie's brothers' involvement with the southern army of Sudan and the fact that they are now allegedly being sought by the Sudanese government. This is obviously in error, as nowhere else in the materials is Sudan mentioned. However, this is not a fatal error. The misidentification of the brothers' affiliation with the Sudan is not a factor in the panel's ultimate decision; that is, while the panel stated "the Sudan", it clearly meant "Yemen". No determination hinges on this error; it is merely a clerical error and therefore, in and of itself, it is not enough to overturn the panel's decision.
(c) The lack of evidence regarding Mr. Al-Shaibie's brothers
[19] At pages 3 and 4 of the decision, the panel notes that Mr. Al-Shaibie did not present any documentary evidence attesting to the existence and activities of his brothers. In the panel's view, this failure is fatal:
[E]ven more important to the panel is the fact that the claimant has provided no documentary evidence to corroborate the story that his brothers (if, indeed, he has brothers) were involved in the southern Sudan [sic] army and are wanted by the Sudanese [sic] officials. The claimant had opportunity to provide such documentary evidence; according to his evidence, he has been in contact with both his brothers. The panel notes that there is no affidavit evidence from his brothers, there are no pictures of the brothers in uniform, there is no corroborating evidence whatsoever for the panel to believe that the brothers are wanted by authorities.
When I asked about pictures, the claimant said that, perhaps, the wives still in Yemen might have pictures. The onus is on the claimant to prove his case. If such pictures were available, he would realize the importance of such pictures. He should have also realized that affidavit evidence or some other evidence for the brothers would be paramount in this case. He did not provide any such evidence.
We then found out the brothers' wives are allegedly in Yemen. When asked if they've had any difficulties, the claimant said, "Well, the authorities have visited them but culturally they wouldn't be touched." The panel has no documentary evidence, one way or the other, on this. In the panel's opinion, if the one brother in the U.A.E. were of such interest to the authorities, they would, at least, put some pressure on the family to try to get the brother to return. There is no reliable and trustworthy evidence that this is happening.
The claimant testified that one brother, Musad [sic], worked in the Ministry of Defence in Yemen. There could have been evidence of this provided. None was provided by the claimant.
[20] The Applicant argues that it was unreasonable of the panel to place such an onus on him; that is, since he is only a layperson, he could not necessarily have realized that further proof of his brothers' existence and activities within the southern Yemeni army was necessary for the successful conduct of his case.
[21] I do not share the Applicant's view on this point. First of all, I note that he was represented by counsel at all times and during the hearing. Second, the crux of Mr. Al-Shaibie's claim is that he cannot return to Yemen since the Yemeni government is likely to then use him in turn as a tool to force his brothers to return to Yemen, whereupon they are likely to face certain torture and death. In light of this, it seems obvious that a corroboration of Mr. Al-Shaibie's story would be helpful. The most likely source for such a corroboration would be in the form of evidence from one, or both, of the brothers, whether it be as an affidavit or otherwise. Even a copy of one of the letters between Mr. Al-Shaibie and his brothers might have been adequate. But Mr. Al-Shaibie did not adduce any such evidence, and the panel was consequently forced to rely on this bald allegation of events without any further evidence. The corroboration of evidence is not a complicated legal idea. It was therefore reasonable of the panel, especially in light of its previous findings regarding Mr. Al-Shaibie's alleged membership in the Ishtiraki Party, to not believe the Applicant's story. In support, I rely on the statement of Mr. Justice Nadon in Hamid v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1293 (F.C.T.D.), at para. 21:
Once a Board, as the present Board did, comes to the conclusion that an applicant is not credible, in most cases, it will necessarily follow that the Board will not give that applicant's documents much probative value, unless the applicant has been able to prove satisfactorily that the documents in question are truly genuine. In the present case, the Board was not satisfied with the applicant's proof and refused to give the documents at issue any probative value. Put another way, where the Board is of the view, like here, that the applicant is not credible, it will not be sufficient for the applicant to file a document and affirm that it is genuine and that the information contained therein is true. Some form of corroboration or independent proof will be required to "offset" the Board's negative conclusion on credibility.
[22] I further note that in the case before Justice Nadon, evidence intended by the applicant to support his story was available to the Board, while in the present case, Mr. Al-Shaibie has not presented any form of corroborating evidence to the panel at all.
[23] The panel cites the lack of photos and the lack of any record of Musa's involvement with the Ministry of Defence as further evidence that the Applicant is not truthful. Also, the panel goes on to note that the Applicant testified that these photos may in fact be available (from the brothers' wives back in Yemen). The comments of the panel clearly indicate that it felt that the Applicant had not succeeded in meeting the required onus to satisfy the panel of the truthfulness of the story being presented.
[24] As the Respondent points out in its written arguments, there is an onus on the Applicant to ensure that the subjective elements of his claim are established with credible and trustworthy evidence. First, the Applicant's subjective fear must be established and then, second, it must be shown to be objectively reasonable. The panel determined that Mr. Al-Shaibie had not proven to them that he held an honest subjective fear of persecution. The panel then went on to determine that, even if subjective fear had been established, the documentary evidence did not support an objective fear. This conclusion of the panel was reasonable. While there is some documentary evidence that returning officers have in the past been subject to inhumane treatment, there is no similar evidence that family members of targeted officers have been threatened, harassed or otherwise persecuted in order to induce the officers to return to Yemen. In the absence of any such evidence, it was reasonable of the panel to disbelieve the Applicant's statement to this effect.
(d) The negative inference regarding Mr. Al-Shaibie's marriage
[25] The Applicant claims, finally, that the panel made an unfair inference regarding his marriage, thereby imputing negative motives to his refugee claim. That is, the Applicant claims that the panel has suggested the marriage was entered into merely for immigration purposes and so, as a consequence, the Applicant's current refugee claim is also not bona fide. In support of this, the Applicant cites the following paragraph of the panel's decision:
He is a citizen of Yemen. He came to the United States; he was sponsored, his sponsorship failed. The claimant tried diligently to stay in the United States, but when he realized he couldn't stay, he came to Canada and made a refugee claim.
[26] I see no reason to support the Applicant's allegation that the panel has suggested that his marriage was not bona fide. The panel has done no more than state the facts. The Applicant married a Yemeni woman who was also an American citizen. She sponsored him and they moved to the United States. For various reasons, the marriage ended before the sponsorship claim was finalized and so that, too, was withdrawn. The Applicant testified that he pursued various avenues of recourse in order to attempt to stay in the United States (though I note, not a refugee claim). These proved fruitless, and so he came to Canada and made a refugee claim here.
CONCLUSION
[27] As outlined above, the panel's decision in this matter was reasonable. While there were a few minor errors and an area in which the panel should have exercised more caution, none of these are so egregious nor numerous as to necessitate the granting of this judicial review. In its entirety, read as a whole, there are no grounds upon which to reverse the decision, and this judicial review shall consequently be rejected.
[28] The parties were invited to submit a question for certification. They did not do so.
ORDER
THIS COURT ORDERS THAT :
This application for judicial review is denied and no question will be certified.
"Simon Noël"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5830-04
STYLE OF CAUSE: NASR MOHAMED KASSAM AL-SHAIBIE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY JUNE 21, 2005
REASONS FOR ORDER
AND ORDER BY: NOËL S., J.
DATED: June 27th, 2005
APPEARANCES BY: Ms. Sandra Saccucci Zaher
For the Applicant
Ms. Deborah Drukarsh
For the Respondent
SOLICITORS OF RECORD:
Ms. Sandra Saccucci Zaher
Barrister & Solicitor
Windsor, Ontario
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20050621
Docket: IMM-5830-04
BETWEEN:
NASR MOHAMED KASSAM AL-SHAIBIE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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