Date: 20050714
Docket: IMM-8243-04
Citation: 2005 FC 979
Ottawa, Ontario, this 14th day of July, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
BASSAM JWEIDAN AL-JAMEL, BASMA M.M. DAJEH,
MUSTAFA BASSAM AL-JAMEL, REEM BASSAM AL-JAMEL,
SARA B.J. BASSAM JAMEL, MANAL BASSAM JAMEL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Mr. Bassam Jweidan Al-Jamel (the "principal Applicant") is a citizen of Jordan who claims Convention refugee status and protection based on his political opinion and on his membership in a particular social group, that being the Al-Khoury tribe in Ma'an, Jordan. His spouse and children are also citizens of Jordan and base their claims on the principal Applicant's claim. In a decision dated September 14, 2004, a panel of the Immigration and Refugee Board (Refugee Protection Division) (the "Board") dismissed their claim on the basis that the testimony was not credible on key elements of the claim. The Applicants seek judicial review of that decision.
Issues
[2] The Applicants challenge a number of the findings of the Board. Thus, the issue in this case is whether the Board, for certain key findings, misapprehended or did not have regard to the evidence before it such that, overall, the decision is patently unreasonable.
Analysis
(a) Standard of Review
[3] The Board's decision rests on its conclusion that the Applicants' story was not credible. A finding of credibility is a finding of fact. As a result, the Applicants bear a heavy burden of proving that the Board's determination is perverse, capricious or without regard to the evidence before it
(s. 18.1(4)(d), Federal Courts Act, R.S.C. 1985, c. F-7). It is trite law that this Court will only intervene where the Board's decision is found to be patently unreasonable (Aguebor v. Canada (Minister of Employment and Immigration), (1993) 160 N.R. 315 (F.C.A.)) in that it is unsupported by the evidence.
(b) Failure to consider evidence of memory problems
[4] The Board considered a letter from the family physician, Dr. Khulbe. The first paragraph of the physician's letter describes the alleged torture as described to him by the male Applicant, and the visible signs of that alleged torture. In the second paragraph, Dr. Khulbe considers the mental state of the male Applicant. The physician describes the symptoms of general depression, insomnia, and states that, "He does seem to have decreased concentration and lack of short term memory". The conclusion of that paragraph is that "Many of these symptoms can be collectively placed under post traumatic stress syndrome".
[5] In its decision, the Board discusses Dr. Khulbe's letter and, with clear reasons, concludes that:
_ Dr. Khulbe's comments about certain dark marks on the principal Applicant's scalp were "far too in conclusive for the panel to give them much weight";
_ "the panel is not convinced that his psychological conditions are linked to the alleged persecution".
[6] The Applicants assert that the Board failed to consider the evidence of the principal Applicant's forgetfulness, which was referred to in his Personal Information Form ("PIF") and supported by Dr. Khulbe's letter, and the impact that it would have on the principal Applicant's testimony. This evidence, in the Applicants' submission, explains his inconsistencies and forgetfulness during the hearing. In their view, the Board misapprehended the evidence of the principal Applicant and Dr. Khulbe.
[7] What must be considered on this point is how and why the evidence of forgetfulness was presented to the Board. Although the principal Applicant refers to his forgetfulness in his PIF, the mention is buried in one sentence at line 79 of a 91 line narrative, in a paragraph that refers to many health concerns. When the letter from Dr. Khulbe was introduced on the second day of the hearing, the principal Applicant was asked why he got the letter from a doctor. His response was that "I went for her to check me and I told her that this time that I cannot concentrate at all and I lose concentration".
[8] However, what is not clear is why the Applicant was putting forward this information. Was it, as alleged now by the Applicants, to explain weaknesses in the testimony? Or, was it presented as evidence of the lasting effects of the alleged incidents? No further mention of the letter from Dr. Khulbe was made until final summation by the Applicants'counsel who referred to the evidence as follows:
Does he meet the test which he has to show that there is more than just a mere possibility of facing serious harm should he return? Yes, both on his personal evidence and the corroborating doctors reports and letters. It shows that he has suffered torture in the past. So it is reasonable to conclude that this is not something that he is making up. [emphasis added]
[9] Counsel, in closing, made no mention whatsoever of any problems that the principal Applicant had in testifying.
[10] As the decision demonstrates, the Board believed that the statement of deteriorating memory in the PIF and Dr. Khulbe's description of psychological problems were presented to corroborate the principal Applicant's testimony that he was suffering the symptoms of post traumatic stress syndrome. I am satisfied that this evidence was put forward as evidence of the effects of the alleged mistreatment and not, as is now asserted, to explain or excuse the weaknesses in the principal Applicant's testimony. It was not unreasonable for the Board to address the impact of memory loss only as part of the Applicants'allegations of harm since that is how the evidence was presented. There was no misapprehension of the evidence.
(c) Medical evidence of torture
[11] The principal Applicant alleges that, after a protest in 1996, he was jailed for ten days, during which detention he was "beaten and tortured (beating on the feet, burning with hot metal, tying our hands and feet, threatening to sexually violate the female members of our households)." Dr. Ruddy, a dermatologist, examined a scar on the principal Applicant's ankle and provided the following diagnosis:
The pattern and configuration of the scar is certainly compatible with a healed wound such as a burn caused by a hot object. This would certainly be consistent with the history given by the patient. It would be difficult to imagine this very distinct pattern being produced by natural causes.
[12] In its decision, the Board accepts the dermatologist's finding but finds that it is "inconclusive with respect to whether the ankle wound was caused by torture or whether it was caused by other reasons." The Applicants submit that this finding is patently unreasonable in light of the evidence and that the Board was requiring the Applicant to prove the torture on too high a standard of proof.
[13] In my view, it would be most unusual for a claimant to obtain direct eye-witness or other unassailable evidence of torture. Thus, in many cases, the claimant presents medical evidence to corroborate the subjective component of his claim. That evidence could be from a doctor that treated the claimant immediately after the incident. Or, as in this case, the claimant could obtain a medical report years later that concludes that a scar is not inconsistent with a story of torture. However, regardless of the form this evidence takes, it is not direct proof that the torture took place and, accordingly, the Board was correct when it stated that the dermatologist's finding was "inconclusive", meaning that it was not "direct" or incontrovertible evidence.
[14] The Applicants are arguing that the Board should have accepted, at least on a balance of probabilities, the allegation of torture solely on the basis of the dermatologist's statement. However, the Board cannot look at the medical report in isolation; rather, the Board must weigh the medical report together with all other evidence related to the alleged incident to reach its overall conclusion of whether the alleged torture did or did not occur. A lack of credibility or disbelief of the factual foundation may negatively affect the weight that the Board gives to corroborating evidence (Chahal v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1121, at paras. 34 and 35; Heer v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1124).
[15] In this case, the Board describes numerous discrepancies and inconsistencies in the principal Applicant's testimony that led the Board to find that he lacked credibility. In light of the many problems described in careful detail by the Board in its decision, the overall finding that the Applicants were not mistreated by Jordanian authorities as alleged is amply supported by the evidence.
(d) Letter from City Clerk
[16] On the second day of hearing, the Applicants submitted a letter purportedly from the City Clerk of Ma'an. The letter alleges that the Jordanian authorities are searching for the principal Applicant because he insulted the King of Jordan. The Board gave no probative value to the letter, concluding that it was "invented to bolster the claims", stating a number of reasons:
_ The principal Applicant had never alleged that he was being sought for defaming the King;
_ The letter was typed on plain paper (not on letterhead) with a stamped signature; and
_ No envelope was produced.
[17] The Applicants assert that the Board erred in its findings on the letter in that there was no evidence to support that the letter was an invention. I do not agree. In my view, there was evidence that supports the Board's conclusion. The weighing of that evidence is completely within the Board's control.
(e) Spouse's testimony
[18] The principal Applicant's wife testified at the hearing. There is no specific reference to her testimony in the decision. Although there is a gap in the transcript that prevents a full assessment of what she said, I accept that the spouse testified as to alleged police searches and threats, some of which occurred while the principal Applicant was not at home. This evidence of actions by the authorities were, the Applicants allege, separate from the allegations of the principal Applicant. The Board, they assert, erred by failing to have regard to this evidence.
[19] While it is correct that the spouse is not referred to by name in the decision, I am satisfied that the Board did not err. The Board is not required to refer to every piece of evidence before it (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.)). It is not simply the fact that the spouse testified that is important but, rather, what she testified to. In other words, did the Board have regard to the evidence of the spouse that the Applicants' home was repeatedly searched? While not referring to the spouse by name, the Board concluded that it did "not find credible that the Applicants' home was repeatedly searched over the years, particularly during [the principal Applicant's] absences from Jordan." In my view, the decision supports a conclusion that the Board was aware of and considered the spouse's testimony in its review.
[20] It would have been better for the Board to make explicit reference to the spouse's testimony. However, in this case where her testimony was, for the most part, simply corroborative of that of the principal Applicant, any error would be immaterial to the overall decision.
(f) Re-availment
[21] The Board found support for its decision in the fact that the principal Applicant travelled extensively in and out of Jordan, with little difficulty in doing so. The Board considered, and rejected as not credible, evidence of numerous detentions at the airports. In summary, the Board found that this evidence contradicted his evidence that he encountered difficulties in exiting and entering Jordan and that "his actions of repeatedly leaving and returning to Jordan do not reflect the actions of a person who feared for the security of his life". The Applicants assert that the Board erred in its assessment of the principal Applicant's travel.
[22] The Board may have made a minor error with respect to the issuance of a passport to the principal Applicant's passport in 1995. As this was before the alleged political activities in 1996, there is no support for the Board's finding that, given his opposition to the government, it was implausible that he would be issued a passport in January 1995. However, this error does not materially affect the Board's conclusions based on his ability to travel with relative ease.
(g) Assessment of situation of Applicants in Ma'an
[23] The Applicants assert that the situation facing citizens living in the city of Ma'an was not properly assessed by the Board and that the Board failed to "link" the documentary evidence on Ma'an to the Applicants' political profile. Having accepted that the principal Applicant had been a member of the tribal council in Ma'an, the Applicants assert that the Board should have considered the risk faced by a person of that profile in Ma'an.
[24] Having reviewed the record and the Board's decision, I see no error. The Board considered the documentary evidence before it on the situation facing citizens of Ma'an in particular. The Board had already rejected as not credible most of the Applicant's testimony on his heightened profile. The Applicants did not refer me to any documentary evidence that demonstrates that a person who was a member of the Ma'an council is at any greater risk than the general population of Ma'an.
Conclusion
[25] The decision of the Board is well-reasoned and all of its key findings are supported by evidence. There is no reason for this Court to intervene. The application for judicial review will be dismissed. Neither party proposed a question for certification. None will be certified.
ORDER
This Court orders that:
1. The application is dismissed; and
2. No question of general importance is certified.
"Judith A. Snider"
______________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8243-04
STYLE OF CAUSE: BASSAM JWEIDAN AL-JAMEL et al
v. THE M.C. & I.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: July 6, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: July 14, 2005
APPEARANCES:
Mr. Byron Pfeiffer FOR APPLICANTS
Mr. Alexander Gay FOR RESPONDENT
SOLICITORS OF RECORD:
Pfeiffer & Associates FOR APPLICANTS
Ottawa, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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