Date: 20040224
Docket: IMM-3142-03
Citation: 2004 FC 271
Toronto, Ontario, February 24th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
OUSMAN ALLAHI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is a 29 year-old man from Chad. He claims to have a well-founded fear of persecution as a result of his support of the Parti Démocratique Africain (PDA), a political party founded by his cousin and as a result of his family's political in the PDA and Movement for Democracy and Justice (MDJT).
[2] In Reasons dated April 2nd, 2003, the Board found that the applicant's political profile is not consistent with the profile of a man who would draw the attention of the Chadian authorities. In addition, it identified implausibilities in his story and found that he had often provided vague testimony during the hearing. It also found that the applicant lacked a subjective fear of persecution because he was unwilling to return to live with nomadic family. In summary the Board found that the applicant had not provided the Board with sufficient, credible or trustworthy evidence that he was personally targeted or will be targeted by the authorities as a result of the incidents he recounted.
ISSUES
[3] The application raises several issues.
1. Did the Board err by failing to consider whether the applicant would be persecuted in future because he belongs to a family whose members are anti government?
2. Did the Board err in concluding that the applicant lacked a subjective fear of persecution?
3. Did the Board err by drawing a negative inference from the applicant's amendment to his PIF in order to add the 1995 incident to his story?
4. Did the Board err in its consideration of the MDJT letter?
5. Did the Board otherwise err in its implausibility and credibility findings?
6. Did the Board fail to consider documentary evidence before it?
STANDARD OF REVIEW
[4] The applicant has challenged findings of fact made by the Board. The standard of review for the Board's factual findings is patent unreasonableness (Sivasamboo v. Canada (M.C.I.), 1 F.C. 741; Conkova v. Canada (M.C.I.), [2000] F.C.J. No. 300).
Issue 1. Did the Board err by failing to consider whether the applicant would be persecuted in future because he belongs to a family whose members are anti government?
[5] The Applicant submits that the Board acted contrary to the judgement in Hartley v. Canada (M.C.I.), [2000] F.C.J. No. 631 by failing to consider the threat which he faces as a result of the involvement of his family members in a rebellion. In addition, he submits that panel exclusively concentrated on his past rather than future risk of persecution.
[6] The Respondent replies that the applicant did not provide the Board with evidence that he, a campaign worker or a family member had been arrested or detained as a result of their involvement with the PDA. It submits that the Board's conclusion that the applicant did not fit the "profile of a man who would draw the attention of the Chadian authorities" was not patently unreasonable.
[7] At page 7 of its Reasons, the Board stated:
At the end of the hearing, counsel for the claimant forwarded the argument that the claimant could be targeted for persecution in the future, because members of his family are anti-government and have joined the rebellion. However, this is not the claim that was put forth by the claimant. The claimant's claim is that he fled because of the circumstances around his cousin Gueti's campaign and his assassination.
The panel finds that the claimant was not able to provide the panel with sufficient credible or trustworthy evidence to support the fact that he was personally targeted by the authorities as a result of the above mentioned incident, or that he will be targeted by the authorities in the future, as a result of this incident. [Underlining added]
[8] The Board is obliged to consider all of the arguments advanced by the applicant and all of the possible grounds upon which he might face persecution in his country of origin (Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689; Hartley, supra.). In this case, the Board concluded that the applicant, as a result of his own minimal involvement in politics, would not face persecution in Chad. There was certainly plenty of evidence in the Tribunal record to allow the Board to reach that conclusion.
[9] However, it failed altogether to consider whether or not he might face persecution due to his cousins' and brother's involvement in opposition parties. The applicant on p. 22 of the Tribunal record states:
The problems that I experienced in Chad are directly attributable to my relationship to my family members. My family has a history of opposition to the MP's government headed by Idriss Deby. In fact my cousin, Youssouf Galmaye, was commander of the Gendarmerie National of Chad. During the war between Deby and Habre in 1989 my cousin was killed.
In addition on pp 138-139 the applicant testifies in respect of family members of opposition members being killed.
[10] In Hartley supra Mackay J. stated:
9 Natural justice and procedural fairness require the panel to consider the arguments put forward by the claimant. The claimant argued that he was the subject of persecution because of a perception that he was a member of a particular social group. The record indicates that the panel did not address whether perceived membership could give rise to Convention protection, an issue critical to the applicant's claim. Moreover, without making any express finding of lack of credibility in the claimant's evidence, this panel refused to consider its weight in the absence of corroborating evidence. It cannot, without reasons, fail to consider the applicant's testimony.
[11] The same reasoning can be applied in the instant case. The Board should have considered this evidence, ruled whether it was credible or not and assign weight to it. It took none of these steps, but as set out in paragraph 7 above, ruled incorrectly that this was not part of the applicant's case. Its failure to do so constitutes a reviewable error.
[12] While I found the respondent's arguments quite persuasive in respect of the other issues, I have no choice but to refer the matter back to the board given my finding in respect of issue 1.
ORDER
THIS COURT ORDERS that
1. The decision of the Board of April2, 2003 is set aside.
2. The matter is referred back to the board for reconsideration by another panel.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3142-03
STYLE OF CAUSE: OUSMAN ALLAHI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 23, 2004
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
DATED: FEBRUARY 24, 2004
APPEARANCES BY:
Howard Eisenberg For the Applicant
Angela Marinos For the Respondent
SOLICITORS OF RECORD:
Howard Eisenberg
Hamilton, Ont. For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
TRIAL DIVISION
Date: 20040224
Docket: IMM-3142-03
BETWEEN:
OUSMAN ALLAHI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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