Date: 20021114
Docket: IMM-1158-02
Neutral citation: 2002 FCT 1182
Ottawa, Ontario, this 14th day of November, 2002
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
WAEL QASEM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review, pursuant to s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board ("IRB") that determined that the applicant is not a Convention refugee.
ISSUE
[2] Is the decision of the CRDD patently unreasonable?
[3] My answer to this question is "no" for the following reasons.
BACKGROUND
[4] The applicant was born in 1975 in Beit Hanoun in Gaza, which is now under Palestinian control. His entire family is in that area. He is stateless, but Palestine is his place of habitual residence. According to his affidavit in support of this application, he states that he came to Canada at the end of November 1999 and "shortly thereafter", made a claim to be recognized as a Convention refugee. In fact, he arrived in Canada on November 25, 1999 and made his claim for refugee status on March 30, 2000.
[5] The events, as the applicant saw them, which prompted the applicant to apply for Convention refugee protection, are laid out in the narrative which he included with his Personal Information Form ("PIF"). As a child, he went to a school in which members of both genders attended classes together. In one of his classes, he met a girl, Shaima, whom he befriended.
[6] After 1987, schools were divided by gender but the applicant and Shaima continued to see each other. When they became teenagers, Shaima's family began to express disapproval with their relationship. The applicant is from the Kafarneh tribe and Shaima was from the Masri tribe. Each tribe has traditions and customs.
[7] The applicant had plans for marriage to Shaima and for them to live together. Between 1993 and 1997, the applicant went to university in Iraq and returned with a degree. During his studies, Shaima wrote to him, asking him to return, because her family wanted her to marry her cousin, Khalid. The applicant's proposals to Shaima's family, personally and through tribal dignitaries, did not lead to what the applicant was ultimately seeking; that is, approval from Shaima's father to marry her. He was repeatedly rebuffed and informed that Shaima had been promised to Khalid.
[8] At the Preventive Security Station ("PSS"), the applicant was detained and interrogated briefly, and warned that he should stay away from Shaima; otherwise, charges would be laid. He was summoned a second time to the PSS, where he was interrogated on his affiliation with the Arab Liberation Front, an arm of the Ba'ath Party in Iraq. Following this interrogation, he was again warned to stay away from Shaima.
[9] The third time that he responded to a summons to report to the PSS, he was interrogated more aggressively and struck on the head with a gun. He was accused of working for the Arab Liberation Front. Before serious injury could be caused, mediators arrived and the applicant was released, but warned again to stay away from Shaima.
[10] On a subsequent occasion, the applicant met with Shaima's father. At the end of their meeting, her father told him that upon completion of his university studies, he could marry Shaima.
[11] Upon his return from university, however, he was met with the refusal by Shaima's father, communicated by dignitaries, to allow him to marry her. The applicant met with Shaima, who expressed great distress at the pressure she was facing to marry Khalid. The applicant and Shaima married secretly in September 1999 in a religious ceremony - a civil ceremony was not possible without the approval of Shaima's parents. Shaima's father destroyed the marriage certificate the applicant sent him.
[12] On October 1, 1999, the applicant learned that Shaima had been killed by her cousin, Khalid, in order to avenge his honour and that of her family. The applicant learned that they also sought to kill him for his part in causing this family disgrace. The Masri tribe was of the view that if they killed the applicant, members of their tribe would be killed in retaliation. According to the applicant, their retaliation came in the form of accusations being brought against him for providing information to the Israel Intelligence Agency, Shin-Bet. A warrant for his arrest would be issued and he would be tried and executed for treason. He now claims to be wanted in his country.
[13] The applicant took advantage of the opportunity to take a trip to Canada to attend a conference with the help of his employer. He was brought by car to the Palestinian crossing points, then taken to Egypt, then he flew to Canada, passing through France in transit.
[14] He was granted permission to enter Canada as a visitor. When his visitor status was near expiry, he applied for refugee status in Canada.
DECISION AT ISSUE
[15] In its extensive set of reasons, the panel made a number of observations. The panel is aware that a woman can be killed to avenge or protect the honour of a man or the family of the woman, and that women generally face pressure from their families to marry while they are young.
[16] The panel heard no credible evidence as to why Shaima's family would put off marrying her to Khalid, even though she was into her twenties when she married the applicant and was subsequently murdered. The delays of "not months but...years" led the panel to believe that the applicant's version of the evidence was not plausible.
[17] Upon the claimant's graduation from school in Iraq and return to Gaza in 1997, he did not see Shaima immediately. He did not see her again until 1999. The panel did not accept that there was a valid reason why they did not see each other during a long stretch of time, notwithstanding that they could have met at each others' places of work. The panel did not accept the claimant's explanation that her family was watching her closely and that she did not wish to embarrass her.
[18] The applicant alluded in his testimony to local custom and tradition, leading the panel to expect that the applicant was familiar with those values. He should have been more aware of the consequences of marrying Shaima and having sex with her, as he allegedly did. He could have taken steps to protect her. He could have sought advice from elders before his marriage to Shaima, and he could not have expected Masri, with private pride and a public reputation to protect, to accept without hostile reaction the applicant's marriage simply because it was a "fait accompli".
[19] Given the options Shaima's father, Masri, had throughout the relevant time period with respect to her marriage, the panel found it implausible that the claimant would be subjected to the treatment that he alleged, including the accusation of collaboration with Israel.
[20] The panel did not believe the testimony of the claimant that he turned down his father's offer to send people to the PSS to support the claimant because he wanted them to continue believing that nothing was wrong. The circumstances at that time would not have allowed them to believe that.
[21] The panel found that among Masri's options with respect to the claimant, Masri could have arranged to have the claimant imprisoned, making the allegations of false accusations implausible. The panel also noted instances where the claimant evaded questions and gave misleading answers.
[22] The panel noted that the signature on the applicant's application for a visitor's visa ("CVV"), is different from the signature of the applicant on his PIF. The applicant stated that his secretary had signed the application for him. The panel found his explanation for having the secretary sign for him unsatisfactory, as well as his explanation that the secretary guessed that he was married because he wore a ring; she knew that he had married Shaima when he signed it.
[23] The applicant failed to provide a copy of the marriage certificate or proof of the death of Shaima. The panel found that the applicant had contacts who he could have approached, and found unsatisfactory his reasons for not doing so. The overall lack of documentation affected the applicant's credibility. The panel, aware of the limited consideration that it can give to this factor, stated the following:
The panel is aware that it cannot disbelieve the evidence of the claimant based solely on the lack of documentary evidence in support of the claimant's testimony. However, the claimant is highly educated. As a professional he would be aware of the importance of documents. He had much notice of the panel's interest in this document. [...] The panel draws an adverse inference from his lack of diligence in seeking this document, and finds it lacks credible and reliable evidence of the murder of Shaima.
[24] The panel also expressed doubt that the claimant's allegation that his business dealings with an Israeli caused him to fear persecution in Gaza, and his allegations of physical and mental health problems. The CRDD questioned in particular why the applicant, if he perceived persecution, would visit state-run clinics when clinics operated by agencies of the United Nations were also available.
SUBMISSIONS
Applicant
[25] The panel should have considered all aspects of the personal and family background of the applicant; in short, everything that may serve to indicate that the predominant motive for his application is fear. Also, while the panel may reach a conclusion based on reasonable inference, it may not indulge in mere speculation or conjecture. In the same vein, the panel may not draw inferences with respect to motives and intentions if those inferences are not supported by the evidence.
[26] The panel erred in focussing on inconsistencies that are not central to the claim. Inferences drawn concerning the plausibility of testimony must be reasonable. The panel engaged in pure speculation regarding how Shaima's father could have dealt with the applicant which went against the evidence put forward.
[27] The panel stated that the answers of the claimant were misleading or non-responsive, but the examples cited by the panel do not go to the core of the issues involved; rather, they deal with extraneous and conjectural matters.
[28] The panel found it not to be credible that the claimant's business relationship with an Israeli gave him good grounds to fear persecution. In fact, the treason charge was fabricated as a pretext for putting the claimant at risk of persecution at the hands of the Palestinian authority, and it was an error for the panel not to realize this.
[29] The panel failed to determine whether on a correct interpretation of the evidence, there was a well-founded fear of persecution within the meaning of the Convention, thereby erring in law.
[30] It was also an error on the part of the panel not to accept the medical documents provided by the Beit Hanoun clinic because there were no documents with respect to the applicant's physical or mental health from any institution or doctor in Canada. It is his mental and physical state at the time he left Gaza that matters, not whether or not he sought, or ought to have sought medical help in Canada.
[31] Having failed to have regard for the context in which documents were presented to the panel, the panel erred in law by failing to have regard for the totality of the evidence properly before it.
[32] With respect to the delay of the applicant in filing the claim for refugee protection, the panel ought to have considered that the applicant was hoping that the situation would have improved in such a manner that he could return to his country before the expiration of his visitor's visa. When that time was up, he acted immediately to claim refugee status.
Respondent
[33] The respondent notes that the panel cited the applicant's delay in making his claim, the lack of foundation for his claim and his failure to provide credible and plausible evidence supporting the claim as reasons for dismissing that claim. The respondent cites Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.) in support of a patent unreasonableness standard of review to be applied to the decision of this panel.
[34] This Court should be less inclined to interfere with a finding of a CRDD panel regarding the credibility of a witness than in other situations, given that the tribunal is able to assess the witness in oral testimony. The panel cited examples of the applicant's demeanour and of his evasive answers.
[35] Hilo v. Canada (Minister of Employment and Immigration) (1992), 15 Imm. L.R. (2d) 199 (F.C.A.), stands for the rule that negative decisions on credibility are properly made as long as the CRDD gives reasons for that decision in clear and unmistakable terms. This was done in this case.
[36] The respondent cites at pages 5 and 6 some of the conclusions of the panel with respect to the credibility of the applicant. Some of these examples are contained in the summary of the panel's decision provided above.
[37] The applicant failed to specify reasons for which his statements should have been presumed to be true in spite of inconsistencies and implausibilities which went to the heart of the claim. The appropriate tests for determining credibility were observed by the panel.
[38] Contrary to the applicant's assertions that the panel ignored or misconstrued the documentary evidence, it considered and properly weighed many elements of that evidence, such as information about honour killings, arranged marriages and the exercise of power by the Palestinian authority in Gaza against the testimony of the applicant.
[39] The panel was entitled to rely upon the documentary evidence rather than that of the applicant, which was not plausible. In addition, no error was shown in the findings of the panel concerning the possible exercise of power by Palestinian Authority security agents.
[40] Sections 68(4) and 68(5) of the Act reflect an intention on the part of Parliament that the CRDD be able to take judicial notice of a range of matters beyond that which would be permitted in a court of law. This includes published country information, and this panel was within its rights to use it.
[41] The respondent submits, in the alternative, that the fact that the written reasons do not summarize all evidence introduced does not constitute a reviewable error of law. In addition, the medical certificates that the applicant submitted from Gaza could not be expected to corroborate testimony which is not credible, and the panel correctly assigned no weight to them. The panel was also entitled to take into account the delay between the date of the applicant's arrival here and that of his refugee claim.
ANALYSIS
[42] The impugned findings of the panel are largely factual in nature. Given the specialized expertise of the panel with respect to refugee claims, a patent unreasonableness standard of review with respect to its factual findings is appropriate. The process by which a standard of review ought to be determined was explained elaborately by Bastarache J. in Pushpanathan, supra. After providing examples of situations in which tribunal decisions addressing questions that are mixed questions of fact and law or even questions with a heavy legal component may be subject to deference from the courts. Bastarache J. summarized at paragraph 35:
In short, a decision which involves in some degree the application of a highly specialized expertise will militate in favour of a high degree of deference, and towards a standard of review at the patent unreasonableness end of the spectrum.
[43] The present case is one of those cases where a high degree of deference is justified.
[44] The applicant invoked two cases: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (F.C.A.) and Permaul v. Canada (Minister of Employment and Immigration (1984), 53 N.R. 323 (F.C.A.), in support of his submission that sworn testimony should be presumed to be true, and where it is not inherently unbelievable, cannot simply be ignored or rejected out of hand.
[45] It should be noted, however, that in Maldonado, supra, Heald J. stated at paragraph 5:
[...] On this record, I am unable to discover valid reasons for the Board doubting the truth of the applicant's allegations above referred to.
[46] On this record, however, there is sufficient justification for the panel to doubt the truth of the applicant's testimony. Furthermore, even though every piece of evidence may not be mentioned in the reasons for the decision, the CRDD is not required to list every piece of evidence that it considered in order to satisfy the reviewing court that consideration was given to those pieces of evidence: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1999), 157 F.T.R. 35.
[47] The panel considered the totality of the evidence before it. The applicant would impugn the panel for giving undue consideration to inconsistent testimony with respect to matters which do not go to the core of the issues involved but which deal with "extraneous matters at best".
[48] With respect, two considerations negate the above argument. One is that the panel, in considering the evidence as a whole in order to determine if the applicant has met his burden of proof, considered nearly all of the elements of evidence before it. The CRDD has the right and the responsibility to do so. The inconsistencies in the applicant's testimony, even on matters which, in the view of the applicant, are extraneous, affect the panel's perception of the credibility of the applicant as a whole.
[49] Additionally, evidence that would remedy inconsistencies in the testimony of the applicant was not available or was sufficiently unreliable as to merit no weight. For example, without a death certificate, we cannot even be sure whether or not Shaima is in fact deceased. The applicant would not suggest that that is an extraneous consideration. In addition, although the identity of the person who signed forms in the applicant's name may seem tangential to key events as related by the applicant, the notion that the applicant has sufficiently little regard for the truth as to allow himself to be impersonated can only cast doubt on the veracity of his testimony when taken as a single unit of evidence.
[50] The second factor, as alluded to in the previous paragraph, is that much of the evidence with which the panel had doubts could not be said to be extraneous. For example, the applicant's reasons pressing his position with Shaima's father in 1995 but not seeing Shaima for a year and a half following his return to Gaza are not insignificant. While they may not be determinative on their own, and while the panel could be suspected of microscopic examination were this the only factor called into question, it is nonetheless an important link in the chain of events that allegedly led to the circumstances that justify - or fail to justify - the validity of the refugee claim of the applicant. To the extent that the applicant does not supply the panel with the links to construct a credible, plausible chain of events, the applicant cannot make much progress toward discharging his burden.
[51] The applicant submitted that his delay in seeking refugee status was in fact not a delay. He applied as soon as his right to remain in Canada for another purpose was coming to an end. He had hoped in the interim that the situation would improve to such an extent that he could return home.
[52] In my view, the panel was clearly within its rights to doubt the plausibility of this claim. The alleged problems developed over a number of years. The applicant had little reason to expect that these problems would subside and resolve themselves within a four-month period. The applicant was effectively buying time in Canada and was correctly seen to be doing so by the panel.
[53] The crux of a refugee claim is the demonstration of fear on grounds that are recognized by the Convention.
[54] Here, the panel was correct in finding that if the applicant had the fear of the Palestinian Authority that he claimed to have, then he would not have visited clinics run by those authorities when other clinics were available. This is especially true given that in explaining his problems to staff at a clinic controlled by Palestinian authorities, he would likely have divulged information that would have prejudiced his interests.
CONCLUSION
[55] Finally, the panel gave thorough reasons to support a set of findings with respect to credibility and plausibility. Those findings were reasonable and the CRDD panel was within its rights to make those findings.
[56] For these reasons, the application for judicial review is dismissed.
[57] The parties did not propose a serious question of general importance as contemplated by section 83 of the Immigration Act. No serious question of general importance will be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No serious question of general importance will be certified.
_______________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1158-02
STYLE OF CAUSE : WAEL QASEM and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING : October 2, 2002
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE BEAUDRY
DATED : November 14, 2002
APPEARANCES :
Harvey Savage FOR THE APPLICANT
Allison Phillips
Department of Justice FOR THE RESPONDENT
SOLICITORS OF RECORD :
Rodney L.H. Woolf FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
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