Date: 20020909
Docket: IMM-1586-01
Neutral citation: 2002 FCT 946
Ottawa, Ontario, the 9th day of September 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
BADR-EDDINE DE ROUICHE
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision dated March 7, 2001, by which the Refugee Division of the Immigration and Refugee Board (the Refugee Division) ruled that the applicant, Badr-Eddine De Rouiche, is not a refugee within the meaning of the United Nations Convention relating to the status of refugees (the Convention).
[2] The applicant, a citizen of Algeria, alleges a well-founded fear of persecution because of his political opinions should he return to Algeria.
Facts
[3] The applicant was born in Algeria on February 16, 1965. He is single. He is also blind and he studied engineering. From 1987 to 1998, he worked as a stock controller for the publicly-owned construction company. When the company was privatized, he was laid off. However, he was given a government pension for his disability and the authorities also granted him a guide who helped him get around.
[4] The applicant alleges that his fear of persecution results from his participation in the petition he organized in opposition to the local authorities of El Milia for illegally distributing the social housing intended for the less well-off and disabled population to persons with greater resources who already had an initial dwelling. For example, the applicant alleges that in July 1999 he initiated a petition to the local authorities asking for a stop to the allocation of such dwellings. The applicant says he collected 230 names and that this demonstration was sent to the Waly, the A.N.P., the Housing Ministry and the Interior Ministry. He also alleges that he wrote an open letter to the head of the government as well as the editors of the newspaper "La liberté" in August 1999. The applicant submits that as a result of the petition there were more than one thousand appeals in opposition to the distribution of social housing. His own appeal was one of these. Moreover, he alleges that he compiled a dossier with the assistance of a bailiff because the list of recipients for this social housing had disappeared prior to the expiration of the legal appeal period. Apparently, the applicant sent a copy of this dossier to the President of the Republic, but no evidence was submitted in this regard.
[5] The applicant notes that from the outset of his involvement in this story he received threats from the street such as "[Translation] you're going to be in trouble, you're going to get hurt". Since he was blind, he says he could not know who exactly were the people who were threatening him. According to him, it was people who wanted the houses, people from the government, or even some people who had already been awarded housing. He says he also received calls with death threats at his home.
[6] Because of these threats, the applicant left El Milia toward the end of September 1999 and went to stay with a friend in Algiers. There too he feared for his safety and was afraid he would be found. He sought some means to get out of the country. He took advantage of a conference on retinitis pigmentosa in Toronto to request a visa. He obtained his Canadian visa on June 21, 2000.
[7] The applicant went to France in May 2000 and returned to Algeria, leaving it for good on July 9, 2000. He went through France and Holland before arriving in Canada on July 12, 2000. He attended the conference and on August 14, 2000, he filed a claim for refugee status.
[8] It should be noted that the applicant had also filed a request for a student visa in November 1999 and that it was refused on August 14, 2000.
[9] The claim was heard in Montréal on January 22, 2001, and February 14, 2001.
Decision of the Refugee Division
[10] The Refugee Division determined that the applicant had not demonstrated, in a credible and trustworthy way, a reasonable fear of persecution for the reasons cited. It based its decision essentially on the following factors. First, that the applicant's account contained numerous contradictions, hesitations and improbabilities. Second, the Refugee Division considered the applicant's conduct at his hearing. Finally, the Refugee Division determined that the applicant did not have a subjective fear.
[11] The Refugee Division raised the following points in its reasons in support of its decision:
(a) The applicant was unable to provide the name or letterhead of the petition. Furthermore, as an originator of this petition, his name appears only 86th on the list. The Refugee Division found that these facts undermined the applicant's credibility.
(b) The Refugee Division also found, after hearing the applicant's speech, that he had some trouble explaining who was actually threatening him. Asked "[Translation] Who do you fear if you return to Algeria?," he replied that he did not know where the threat was coming from. The Refugee Division said it had trouble believing that it was the authorities since they had provided the applicant with a guide who helped him get around. It noted that this guide is paid by the government, that the applicant received a government allowance and that, among other things, he obtained a family card on September 4, 2000.
(c) The Refugee Division detected further contradictions in the applicant's testimony, as when he emphasized he did not feel threatened in Algiers but a few seconds later contradicted himself claiming he was afraid of practically everybody. The Division noted that he claimed he was threatened but he had not filed a complaint with the authorities, and that he asserted that some members of his family were members of the military but were unable to assist him, still less protect him.
(d) The Refugee Division was also surprised that only approximately 230 persons signed the petition when such a large number of apartments (499 dwellings) were to be filled and particularly when approximately 1,000 applications seeking recourse had been filed at the board. The Division also noted that the applicant was unable to date the newspaper articles he had himself produced. It was noted that the applicant was not even able to report the name of one author of these articles, although the name had been mentioned at the hearing.
(e) The Refugee Division also noted that these articles referred to the allocation of housing units, whereas the claimant argued that his petition had blocked the allocation process. It concluded therefore that he had no knowledge of the newspaper articles.
(f) Another factor emphasized by the Refugee Division is that of the dual approach taken by the applicant, referring to his visa application and his claim for refugee status. The applicant had not indicated in his Personal Information Form (PIF) that he had applied for a student visa in November 1999 and would probably not have mentioned it had it not been among the documents filed by the Minister's representative. The Refugee Division assumed, in light of the evidence, that the applicant remained in Canada after the conference awaiting the response of the Canadian authorities to his student visa application. The Division thinks the refusal of this application was communicated to the applicant's parents and that it was during a telephone conversation with them on August 14, 2000, that he was informed of the decision. It was following this decision that the applicant, that very day, filed his refugee claim. Thus the Refugee Division found that the applicant's conduct was evasive and lacked transparency, making the applicant, his testimony and his story scarcely credible.
(g) The Refugee Division noted the fact that the applicant had gone to France a few months prior to his departure for Canada and had returned to his country without requesting France's protection while he was there. The Division determined that this conduct was incompatible with that of a person who genuinely feared persecution.
Issue
[12] Did the Refugee Division unfairly undermine the applicant's credibility without taking the evidence and the testimony into account?
Analysis
[13] The applicant cites two reasons in support of his application for judicial review. The first is that the Refugee Division should have recognized that he had proved he was a Convention refugee.
[14] The applicant submits that although the Refugee Division did not believe that he was the originator of the petition, he did discharge his burden of proof by corroborating his account in part through filing credible documents from various sources. It is apparent from this evidence, he argues, that the social housing story is a true one and that it is clear "[Translation] that there is a bribery scandal hidden behind this affair." But it does not seem to me that the Refugee Division questions the actual existence of the social housing problem since it observed that the newspaper articles filed at the hearing by the applicant specified that some dwellings had been allocated. I think it is instead the applicant's involvement in this story that the Refugee Division did not believe.
[15] The applicant argues that he supported his claim with a copy of the petition and the minutes of the bailiff who made a report at the applicant's request. He alleges that he is the person named in the report as the person who requested it in order to establish that the list of recipients was no longer available to the public, in violation of the law. Notwithstanding the applicant's submission as to the corroborative value of these documents, it is up to the Refugee Division to assess this evidence. Unless the panel's assessment is patently unreasonable, there is no reason for the Court to intervene. In this case the Refugee Division analyzed the evidence and observed therein numerous contradictions, hesitations and improbabilities. I am of the opinion that the Refugee Division did not err in its assessment of the evidence and that its finding that the applicant was not the originator of the petition is reasonable.
[16] The second ground cited by the applicant is that the panel unfairly undermined his credibility without taking into account the evidence and the oral testimony. He alleges once again that the Refugee Division did not believe that he was the originator of the petition because he signed it in the 86th place and was unable to give the exact title of the petition. The applicant submits that although he was unable to give the title of the petition word for word, he said it concerned the illegal allocation of the low-priced housing units. Furthermore, he says that the fact that his was the 86th signature on the petition does not mean he did not have the idea of initiating the petition. And in his memorandum, the applicant says he was not the sole mover behind the petition.
[17] The respondent argues that the decision is based on the evidence that was presented, that the Refugee Division made a reasonable inference from it and complied with the applicable principles of law. The Refugee Division, he submits, determined that the applicant's account was made up of contradictions and improbabilities. Furthermore, the Refugee Division considered the applicant's conduct at the hearing and determined that the applicant was not credible and had not justified his subjective fear.
[18] The decision is essentially based on some findings of fact and consequently a mere disagreement with the reasons or the existence of an inference other than the one adopted by the administrative tribunal cannot suffice to question the merits of the decision that was rendered.
[19] The law is clear that this Court cannot substitute itself for the Refugee Division unless the applicant can demonstrate that the decision is based on an erroneous finding of fact that was made in a perverse or capricious manner or without regard for the material before the tribunal. Mr. Justice McDonald of the Federal Court of Appeal stated the applicable law in this regard in Said v. Canada (Secretary of State), [1997] 1 F.C. 608, at paragraph 24:
The tribunal is uniquely situated to assess the credibility of a refugee claimant; credibility determinations, which lie within "the heartland of the discretion of triers of fact", [note omitted] are entitled to considerable deference upon judicial review and cannot be overturned unless they are perverse, capricious or made without regard to the evidence.
[20] It is trite law that, in matters of credibility and the assessment of the facts, the Refugee Division is a specialized tribunal empowered to assess the plausibility and credibility of testimony insofar as the inferences drawn by the tribunal are not unreasonable [Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)] and the reasons are stated clearly and comprehensibly [Hilo v. Canada (M.E.I.) (1991), 15 Imm. L.R. (2d) 199, at p. 201 (F.C.A.)].
[21] Likewise, the Court of Appeal held in Shahamati v. Canada (M.E.I.), [1994] F.C.J. No. 415 (QL), that the Refugee Division could base its assessment of the probability of a story on criteria such as rationality and common sense:
Contrary to what has sometimes been said, the Board is entitled, in assessing credibility, to rely on criteria such as rationality and common sense.
[22] The respondent further submits that the Refugee Division based itself on the applicant's conduct at his hearing in determining that he was not very credible:
The panel would like to underscore the numerous contradictions and hesitations in the claimant's testimony. [Refugee Division decision, p. 2]
[23] The principle that a court of appeal will be reluctant to intervene when a finding of lack of credibility is based on a witness' conduct before the tribunal or court is still recognized today:
A claimant's demeanour, consistency, ability to present specific facts, and concordance with objective evidence in the record may be thought of as internal credibility, viz, the apparent veracity (or lack thereof) of a witness' testimony, taken within itself and within the record, that is, in the light of demeanour, frankness, readiness to answer, coherence and consistency - what I might call the heartland of credibility. Confusion, failure to respond, evasions, inconsistencies and contradictions will create a perception of lack of credibility. [Tong v. Canada (Secretary of State), [1994] F.C.J. No. 479 at para. 3]
[24] The respondent argues that it was reasonable for the Refugee Division to find the applicant's conduct incompatible with a genuine fear of persecution. I agree with this submission. The fact that the applicant awaited the decision on the status of his student visa before making a refugee claim, and the fact that he stayed in France without seeking the protection of that State are also relevant factors that the Refugee Division could consider in its analysis. In Huerta v. Canada (M.E.I.) (1993), 157 N.R. 225, the Federal Court of Appeal held, at page 227:
The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.
[25] Taking into account the evidence as a whole, it is my opinion that it was not unreasonable for the Refugee Division to find that the applicant's conduct did not correspond to that of a person who really fears for his life.
[26] The applicant has the burden of demonstrating that the Refugee Division erred in its assessment of the applicant's credibility, and to succeed the applicant had to demonstrate that the findings of the Refugee Division comprised a conclusive error that would warrant the intervention of this Court. [See: Ismaeli v. M.C.I., [1995] F.C.J. No. 573 (QL)]. I am of the opinion, in this case, that the applicant has not demonstrated a conclusive error.
Conclusion
[27] In the case at bar, I am of the opinion that the conclusions of non-credibility and lack of subjective fear of persecution drawn by the Refugee Division are not unreasonable in view of the interpretation it made of the documentary evidence and the oral testimony it heard.
[28] For these reasons, this application for judicial review will be dismissed.
[29] The parties have not proposed the certification of a serious question of general importance as contemplated in section 83 of the Immigration Act, R.S.C. 1985, c. I-2. I do not propose to certify a serious question of general importance.
ORDER
THE COURT ORDERS:
1. The application for judicial review of a decision of the Immigration and Refugee Board is dismissed.
"Edmond P. Blanchard"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-1586-01
STYLE: Badr-Eddine de Rouiche v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 18, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE BLANCHARD
DATED: September 9, 2002
APPEARANCES:
Eveline Fiset FOR THE APPLICANT
Steve Bell FOR THE RESPONDENT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE APPLICANT
7563 Saint-Denis
Montréal, Quebec H2R 2E7
Morris Rosenberg FOR THE RESPONDENT
Department of Justice
Guy Gavreau Complex
200 René-Lévesque Blvd. W.
East Tower, 9th Floor
Montréal, Quebec H2Z 1X4
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