Date: 20021213
Docket: IMM-267-02
Neutral citation: 2002 FCT 1298
Ottawa, Ontario, this 13th day of December 2002
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
FADWA BOTROS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division ("CRDD") rendered December 11, 2001, wherein the applicant was determined not to be a Convention Refugee.
FACTS
[2] The applicant is a 40-year old woman from Sudan. She claims that she is persecuted because she is a Coptic Christian in this Islamic country. The applicant was affiliated with a Christian church in Khartoum and in this capacity delivered food to poor Christians in the area. She stated that in June 2000 she was detained by the Sudanese security for five days, during which time she was assaulted and abused. She was accused of attempting to convert Muslims to Christianity. The applicant was released when she agreed to convert to Islam.
[3] Along with her brother, the applicant obtained a visa to travel to the United States in August 2000. The two departed for the United States on October 13, 2000 and arrived in Canada the next day, claiming refugee status. The brother's successful refugee claim was determined without a hearing on May 1, 2002. The applicant included her brother's PIF in her application materials, however he did not testify at her hearing.
THE CRDD DECISION
[4] After making several adverse credibility findings concerning the applicant's testimony, the CRDD held that the claimant was not a Convention refugee.
[5] The CRDD noted that, although the applicant stated that she had been beaten on her back and on her neck, she did not consult a doctor. The claimant stated that she only took a non-prescription painkiller. The panel found these actions to be "inconsistent with her allegations that she was severely beaten".
[6] The CRDD also found implausible the fact that the claimant did not discuss her harassment with the other members of the congregation who were involved in food distribution, nor with Father Mikhael, who supervised the distribution activities. Although the claimant found out that they had also been harassed, she did not discuss the events with them. The claimant stated that she did not want the church to get into trouble. The CRDD found it implausible that the claimant would have such a lack of interest in the harassment of people who were involved in the same activities as she.
[7] At the hearing, the applicant produced letters from Bishop Sarabamon and Bishop Elia which stated that she was a member of the Church and of good character, and that she had served as a Sunday school teacher and helped the handicapped. The applicant was asked why she did not provide a letter from Father Mikhael, who worked in food distribution. The panel drew an adverse inference from the fact that she did not provide a letter establishing her food distribution activities, although this had been requested in advance by the panel. The panel made the adverse inference even though after the hearing the applicant provided a second letter from Bishop Elia which stated that she had been involved in food distribution under Father Mikhael.
[8] In her amended Personal Information Form ("PIF"), the applicant stated that she had been visited by the Imam after she was released from detention. In her oral evidence, the claimant stated that she was visited by security forces and the Imam several times after she was released. The panel drew a negative inference from the absence of these details in her PIF.
[9] The CRDD concluded that the claimant's credibility was at issue concerning her participation in food distribution, the severity of her treatment while detained, and the threats received after her release.
[10] The CRDD considered documentary evidence suggesting that, generally, detentions based on religion were of limited duration and normally restricted to church leaders or those who display their religious views in public. The CRDD stated "the article did not state that the Sudanese government harassed or persecuted Coptic Christians who distribute food only to other Coptic Christians". The panel did not find that there was evidence to support the applicant's objective fear of persecution.
[11] The applicant stated that she had been questioned about her private tutoring of two Muslim children at a Catholic school, and accused of attempting to convert Muslims to Christianity. The CRDD found it "highly implausible for the claimant to be accused of converting these two Muslim children to Christianity, since they were already attending a Christian School.".
[12] The CRDD also noted that there was no evidence that "similarly situated persons" such as Father Mikhael and another parishioner, William, suffered the same kind of treatment allegedly received by the applicant. The panel further noted that the claimant has three Christian siblings who live in Khartoum and that they had not experienced any difficulties. The fact that there was no evidence of persecution against similarly situated persons led the panel to conclude that there is "less than a mere possibility" that the claimant would suffer such treatment in the future.
[13] As a result of all of the above, the CRDD rejected the applicant's claim to Convention refugee status.
ISSUE
Did the CRDD err by making findings of fact in an arbitrary or capricious manner, or without regard for the evidence before it?
SUBMISSIONS AND ANALYSIS
[14] The standard of review in this case is patent unreasonableness. In Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.), it was determined that questions of credibility and weight are matters within the Board's jurisdiction. Indeed, in Aguebor, the Court stated at paragraph 4: "[a]s long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review". Therefore, if a finding is not patently unreasonable, it must stand.
[15] In the present case, the CRDD made numerous adverse credibility findings. The question, according to Aguebor, is whether the findings are so unreasonable as to require the Court's intervention.
[16] Generally, the applicant argues that the decision is rewiewable because the CRDD based its decision on erroneous findings of fact made in a perverse or capricious manner, or without regard for the evidence before it.
[17] She submits that the Board made a capricious finding of fact in drawing an adverse inference from the applicant's failure to provide a letter confirming her activities with the church before the hearing. The Board drew a negative inference concerning the applicant's failure to substantiate her church position and activities, and drew a negative inference because the letter linking her to church food distribution was filed after the hearing. The applicant alleges that in order to find it not credible that the applicant distributed food to the poor, the Board had to find that the information provided by Bishop Elia [in the post-hearing letter] was not true, but the Board made no such finding.
[18] Regarding this argument, my reading of the letter and of the comments made on it by the CRDD is that the applicant's story in relation to food distribution is believed but that the arrest, detention and torture is not believed. In order to come to this conclusion, the CRDD did not have to question the credibility of Bishop Elia, therefore, the comments are reasonable.
[19] The applicant also submits that it was erroneous and perverse for the Board to compare the claimant with her three persecution-free siblings resident in Khartoum as "similarly-situated persons" while ignoring the fact that her brother, George, had successfully claimed refugee status after arriving in Canada with the applicant.
[20] Concerning the CRDD's conclusion that a brother and sister who are Christians and who continue to live in Karthoum or its environment without experiencing any difficulties on account of their religion: This is clearly an error made by the CRDD since the evidence does not support such a conclusion. There was no evidence to indicate that the siblings lived in Karthoum, the same city where George and the applicant lived.
[21] In respect of the other "similarly situated persons", the CRDD noted that other people such as father Mikhael, William, and others, even though involved in the food distribution, were not arrested, detained and tortured. The CRDD concluded that the applicant's story of arrest, detention and torture because of her involvement in the food distribution was not believable. Considering the factual basis of this finding, the CRDD's finding is not unreasonable even though an error was made in involving the applicant's brother and sister in the food distribution. This error is not sufficient to question this erroneous finding.
[22] Furthermore, the applicant considers that it was unreasonable for the CRDD not to have referred to her brother George's experience, which corroborated the story of the applicant. I note that George did not testify at the hearing. I do not think that it was unreasonable on the part of the CRDD not to refer to George's story since the CRDD did not believe the applicant's story. George's story, as narrated in his PIF and filed with the applicant's claim, does not constitute corroboration of the applicant's story because, as he was not a witness at the hearing, the CRDD could not test his story.
[23] With regard to the applicant's failure to mention post-detention visits by the Imam and security forces in her PIF, the applicant argues that the Board misconstrued the evidence presented. In her PIF, the applicant stated that, during the detention, "they made efforts to convince me to convert to Islam, and I was visited by an Imam for that purpose". The PIF was later amended to read that she was visited by the Imam "then and even thereafter". The applicant notes that, during the hearing, the CRDD member asked her: "You told us that you were visited in many occasions by an Imam and security forces after you were released. Why don't you have it in your PIF?". Response: "I mentioned it to Mr. Aaron, to Nadia.". To make this statement clear, Mr. Aaron was the applicant's counsel. The applicant therefore argues that the Board committed a factual error in disbelieving the applicant because, in fact, the Imam's visits were not omitted from her PIF.
[24] The applicant's PIF, as amended, made reference to post-detention visits by the Imam but not by the security forces, thus the Board's reliance on the fact that the applicant never referred to visits by security forces except in her oral testimony is not patently unreasonable. As for post-detention visits by the Imam, these were only referred to in the amended PIF and in the testimony. In my opinion, the question by the Board would have been more accurate if formulated as follows: "You told us that you were visited in many occasions by an Imam and security forces after you were released. Why don't you have it in your original PIF?". In any event, the Board's finding of fact on this issue is not patently unreasonable.
[25] The CRDD found that the applicant's failure to seek medical attention after being beaten by the security forces was "inconsistent with her allegations that she was severely beaten". The applicant submits that there was nothing in the panel's questioning that could justify the conclusion that her conduct was inconsistent with her injuries as described, and that the implausibility finding was not reasonable, nor based on evidence before the panel. I find that it was not unreasonable for the CRDD to disbelieve the applicant's account that she experienced beatings and scars and never sought medical attention, considering the severe nature of the injuries. The applicant, in her own testimony, qualified her detention and torture as being severe. Therefore, it was open to the CRDD to come to such conclusion.
[26] The Board found it implausible that the applicant held a valid passport prior to her negative experiences with the authorities in July 2000, despite the applicant's testimony that in Sudan the passport is used for personal identity purposes within the state. The applicant argues that the Board ignored this credible explanation even though the explanation was not contradicted by documentary evidence. It is argued that, in doubting the applicant's explanation, the CRDD erred by ignoring her uncontradicted testimony.
[27] The respondent argues that it is proper for a panel to decide adversely with respect to a claimant's credibility on the basis of contradictions and inconsistencies in a claimant's story or on the basis that it is simply implausible.
[28] Although I concur with the respondent on the above allegation, I agree, nevertheless, with the applicant's contention; the CRDD disregarded the claimant's explanation concerning the reason for her possession of a valid passport. This seems like a capricious finding since it was made in face of no evidence to the contrary. However, this specific finding has to be assessed in relation with the basis for the decision as a whole and, in essence, I do not think it is consequential to the outcome of the decision.
[29] Finally, the applicant submits that the CRDD failed to have regard to documentary evidence suggesting that, in fact, harassment of Christians was not limited to "those who display their religious views on public". The applicant notes that the 2001 Human Rights Watch Annual Report on Sudan reveals that a wider range of non-Muslims are subjected to many forms of harassment. As a result, the applicant submits that the Board's finding that the applicant does not have an objective fear of persecution was perverse. Furthermore, in his oral submissions, counsel for the applicant submitted that there was no documentary basis to support the conclusion that detention for religious activities was for leaders, and not members nor sympathisers.
[30] In response, the respondent further alleges that a tribunal has no obligation to point to all aspects of the applicant's evidence it finds unconvincing when the onus is on the applicant to establish a well-founded fear of persecution.
[31] It is well recognized that in light of credibility problems detected by the Board, the latter is entitled to rely on documentary evidence in preference to the applicant. In this case, this is what the Board did and I see no reason to intervene. As for the argument that there was no documentary evidence supporting the conclusion that detention was for religious leaders, and not members or sympathisers, I note that there is a reference to a seminarian who was detained for a period of 4 hours. It was certainly open to the Board to consider a seminarian as a church leader when taking into account the religious situation in that country. Therefore, I can only conclude that there was some evidence on file to support such a conclusion.
CONCLUSION
[32] A close reading of the decision shows that the CRDD did not believe a good part of the applicant's story. This consistent trend in the decision clearly affected the perception the CRDD had of her testimony. Her testimony did not impress the CRDD. Counsel for the applicant did a microscopic analysis of the decision and was successful in identifying some errors made by the CRDD. However, these errors have to be assessed in relation to the decision as a whole. I find that the errors are not consequential to the general finding of non-credibility and do not make this decision a patently unreasonable one.
[33] Counsel for the applicant and the respondent were asked to suggest questions for the purpose of certification but they did not propose any.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review of the CRDD decision, rendered on December 11, 2001, is dismissed. No question is certified.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-267-02
STYLE OF CAUSE : FADWA BOTROS and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING : November 21, 2002
REASONS FOR ORDER : THE HONOURABLE JUSTICE SIMON NOËL
DATED : December 13, 2002
APPEARANCES :
D. Clifford Luyt FOR THE APPLICANT
Marianne Zoric FOR THE RESPONDENT
SOLICITORS OF RECORD :
Waldman & Associates FOR THE APPLICANT
Toronto, Ontario
Department of Justice FOR THE RESPONDENT
Ontario Regional Office
Toronto, Ontario
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