Date: 20060504
Docket: IMM-5619-05
Citation: 2006 FC 558
Ottawa, Ontario, May 4, 2006
Present:
The Honourable Mr. Justice Shore
BETWEEN:
SID
AHMED OULD KAZA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
In
respect of the applicant’s allegation that the Board did not consider his case
in relation to the actual situation . . . , all I will say is that this Court
not only concluded that the evidence related to a country is not sufficient to
demonstrate a well-founded fear, but also that the objective and subjective
components of the fear are absolutely necessary. If a refugee claim could be
determined solely on documentary evidence relating to country conditions, then
anyone could read a story in it and make it theirs.
(As decided by
Mr. Justice Simon Noël at paragraph 10 in Nxumalo v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 413, [2003]
F.C.J. No. 57 QL))
NATURE OF JUDICIAL PROCEEDING
[2]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) of the decision by the
Refugee Protection Division of the Immigration and Refugee Board (Board), dated
August 18, 2005, that the applicant was not a Convention refugee or a person in
need of protection under sections 96 and 97 of the Act.
FACTS
[3]
The
applicant, Sid Ahmed Ould Kaza, is a citizen of Mauritania. He alleges that he
was persecuted on the basis of his involvement with the political party Action
for Change, of the organization SOS Slaves Mauritania and on the basis of his
membership in the persecuted social group of the Haratines, slave descendants.
[4]
Mr. Ould
Kaza had allegedly been arrested, detained and tortured for three days in
February 1998, because he participated in a demonstration to free four
leaders of Mauritian human rights organizations, after a broadcast on French
television of a documentary on slavery in Mauritania.
[5]
Then he
was allegedly unfairly deprived of a scholarship that had been awarded to him
because of his good academic performance.
[6]
At the end
of 1999, he left university and got a job at UPS as head of operations. While
working, he says that he continued to militate for his party, Action for
Change.
[7]
At the end
of 2000, Mr. Ould Kaza learned through one of his father’s friends that his
arrest was imminent. Mr. Ould Kaza’s father, a former police inspector,
understanding that his son was in danger, then took steps so that he could
leave the country as quickly as possible. It was then that Mr. Ould Kaza
received a visa for the United States as a student at Northern Virginia
Community College. On October 17, 2000, Mr. Ould Kaza left Mauritania, with the
help of a police officer, a friend of his father, for the boarding formalities
at the airport.
[8]
In the
United States, Mr. Ould Kaza studied English. He continued to militate, which
resulted in his being threatened by Mauritanian spies acting for the embassy on
American soil. In January 2002, Action for Change was banned in Mauritania.
He came to Canada in October 2004 where he claimed protection at the port
of entry.
IMPUGNED DECISION
[9]
The Board
determined that Mr. Ould Kaza’s story had been made up based on his vague and
superficial testimony, his manner of adjusting his answers as well as several
contradictions and implausibilities for which no satisfactory explanation had
been provided.
ISSUES
[10]
The
parties raise the following issues in this case:
1. Did the Board err in finding
that the applicant was not credible?
2. Did the Board err in failing
to make a distinct analysis under section 97 of the Act?
3. Is the Board’s decision wrong
on the grounds of bias?
ANALYSIS
Standard of review
[11]
A decision
bearing on credibility must be reviewed according to the standard of patent
unreasonableness. As a tribunal of first instance, the Board is in the best
position to assess a claimant’s credibility. (Aguebor v. Canada (Minister of
Employment and Immigration), (1993), 160 N.R. 315 (F.C.A.), [1993]
F.C.J. No. 732 (QL), at paragraph 4; Correira v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1060, [2005]
F.C.J. No. 1310 (QL), at paragraph 21; Jayaweera v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1591, [2005]
F.C.J. No. 1962 (QL), at paragraph 28; Al-Shammari v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 364, [2002]
F.C.J. No. 478 (QL), at paragraph 10)
[12]
With
regard to the issues of breaching natural justice or procedural fairness, such
as bias, this Court must review the specific circumstances of this case in
order to determine if there was a breach. There is no appropriate standard of
review, but if this Court determines that there was a breach, it must refer the
decision back to the Board (Thamotharem v. Canada (Minister of Citizenship
and Immigration), 2006 FC 16, [2006] F.C.J. No. 8 (QL), at
paragraph 15)
Credibility
[13]
Mr. Ould
Kaza claims that the Board made every effort to find contradictions, even on
minor points and that the Board did not give him the benefit of the doubt on
any of the evidence submitted.
[14]
The Board
was entitled to rely on the manner in which Mr. Ould Kaza testified at the
hearing, his ability to answer questions clearly and straightforwardly, the
coherence and consistency of his answers as well as the inconsistencies and
implausibilities regarding the essential elements of his story, to find that he
was not credible. (Chen v. Canada (Minister of Citizenship and Immigration)
(1999), 240 N.R. 376 (F.C.A.), [1999] F.C.J. No. 551 (QL); Tong v.
Canada (Secretary of State), [1994] F.C.J. No. 479 (QL), at
paragraph 3)
[15]
For
example, when Mr. Ould Kaza was questioned on the issue regarding why he had
waited four years before becoming a member of Action for Change, he replied
that during that period he had tried to compare the different opposition
parties. When he was asked whether he militated with other parties he replied
“yes and no”.
[16]
Also, Mr.
Ould Kaza had been confronted with his testimony to the effect that he had
curtailed his political after his arrest in February 1998. He replied “I
participated and I did not participate” then he explained that he continued to engage in militant activities with friends, but not
actively”.
[17]
Further,
the Board could validly rely on the following inconstancies and
implausibilities. Mr. Ould Kaza contradicted himself regarding when he became a
member of Action for Change. According to his answer at the interview with an
immigration officer in October 2004, he became a member in July 1994.
However, according to his testimony at the hearing, he has been a militant with
that party since 1994-1995 and became a member in June 1998. While Mr. Ould
Kaza alleged that he has been a member of Action for Change since
July 1994 or that he has militated with this party since 1994, the
evidence indicated that this party was not formed until August 1995.
[18]
Mr. Ould
Kaza alleged that he was involved personally in the 1996 elections for the
purposes of the cultural awareness parties but he did not remember the date
those elections took place. He stated that the Action for Change party had
taken three seats while the evidence indicates that the party only won one seat
during those elections. Further, Mr. Ould Kaza was not aware that the founder
of Action for Change, Kebe Abdoulaye, had been elected Secretary of the National
Assembly and he did not know why Action for Change was not involved in the
boycott of the 1996 elections.
[19]
The Board
was also entitled to find that Mr. Ould Kaza had provided vague and superficial
information regarding his activities with Action for Change before 1998.
According to his testimony, he prepared posters, participated in cultural
parties and raised the population’s awareness about the injustices of power.
[20]
Moreover,
the Board was entitled to doubt the fact that Mr. Ould Kaza had been a sympathizer
of the organization SOS Slaves based on the inconsistency between his testimony
and the documentary evidence regarding the accusations made against the four
leaders of the Mauritanian human rights organizations. Mr. Ould Kaza testified
that these leaders had been accused of defamation and lies while, according to
the documentary evidence, two leaders had been accused of being members of an
unauthorized organization and the other two of forgery, use of forgery, fraud
and belonging to an unauthorized organization.
[21]
These
findings of fact by the Board are entirely supported by the evidence in the
record and Mr. Ould Kaza, in interpreting the evidence in a manner
different from the manner selected by the Board, did not establish that these
findings were capricious or unreasonable.
[22]
As for the
allegations based on the membership with the Haratine group, it was not enough
for Mr. Ould Kaza to name a social group, he also had to establish a fear
of persecution, as stated in Rajudeen v. Canada (Minister of Employment and
Immigration) (1984), 55 N.R. 129 (F.C.A.), [1984] F.C.J. No. 601
(QL):
The first question to be
answered is whether the applicant had a fear of persecution. The definition of
Convention Refugee in the Immigration Act does not include a definition of
"persecution". Accordingly, ordinary dictionary definitions may be
considered. The Living Webster Encyclopedic Dictionary defines
"persecute" as:
"To harass or afflict with repeated
acts of cruelty or annoyance; to afflict persistently, to afflict or punish
because of particular opinions or adherence to a particular creed or mode of
worship."
The Shorter Oxford
English Dictionary contains inter alia, the following definitions of
"persecution':
A particular course or period of
systematic infliction of punishment directed against those holding a particular
(religious belief); persistent injury or annoyance from any source.
[23]
Hence,
contrary to Mr. Ould Kaza’s claims, the Board did not use an inappropriate test
(i.e. the test in favour of a disadvantaged person) because Mr. Ould Kaza’s
personal situation is clearly inconsistent with his allegations of fear of
persecution.
[24]
In
assessing the credibility and the plausibility of an applicant’s testimony, the
Board is entitled to rely on common sense and rationality (Antonippillai v.
Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 382 (QL), at paragraph 9; Sbitty v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 1744 (QL); Shahamati
v. Canada (Minister of Employment and Immigration), [1994]
F.C.J. No. 415 (QL), at paragraph 2; Cota v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 872 (QL), at
paragraph 16; Neame v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 378 (QL), at paragraph 19; Anandasivam v.
Canada (Minister of Citizenship and Immigration), 2001 FCT 1106, [2001]
F.C.J. No. 1519 (QL), at paragraph 24).
[25]
In Rahaman
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89, [2002]
F.C.J. No. 302 (QL), at paragraph 29, the Federal Court of Appeal
reiterated the following:
However, as MacGuigan
J.A. acknowledged in Sheikh, supra, in fact the claimant’s oral testimony will
often be the only evidence linking the claimant to the alleged persecution and,
in such cases, if the claimant is not found to be credible, there will be no
credible or trustworthy evidence to support the claim. Because they are not
claimant-specific, country reports alone are normally not a sufficient basis on
which the Board can uphold a claim.
[26]
In Nxumalo,
supra, at paragraph 10, Mr. Justice Simon Noël decided that:
In respect of the applicant’s allegation that the Board did not consider
his case in relation to the actual situation in Zimbabwe, all I will say is
that this Court not only concluded that the evidence related to a country is
not sufficient to demonstrate a well-founded fear, but also that the objective
and subjective components of the fear are absolutely necessary. If a refugee
claim could be determined solely on documentary evidence relating to country
conditions, then anyone could read a story in it and make it theirs.
(See also: Dukefe v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 410, [2003]
F.C.J. No. 571 (QL), at paragraph 13; Canada (Secretary of State)
v. Jules, [1994] F.C.J. No. 835 (QL), at paragraph 17; Sinora
v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 725 (QL), at paragraph 5).
Article 97
[27]
Mr. Ould
Kaza’s lack of credibility regarding the essential elements of his story
amounts to a finding that there is no credible evidence to support his refugee
claim.
[28]
In Obeng
v. Canada (Minister of Citizenship and Immigration), 2004 FC 636, [2004]
F.C.J. No. 774 (QL), at paragraphs 3-5, Mr. Justice Yvon Pinard
reiterated the following:
The IRB determined that the
applicant is not a “Convention refugee” or a “person in need of protection”
because her allegations were not credible.
The IRB gave several reasons
for its finding that the applicant’s story was not credible. The panel noted, inter
alia, the inconsistency between the applicant’s allegation that she fears
her father and the information contained in the Certificate of Registration in
the birth registry, the applicant’s failure to mention her fear of Mr. Banda at
the port of entry, and the implausibility of the applicant’s statements
regarding the financial resources which enabled her to travel to Canada. A
review of the file indicates that the applicant’s explanations on this point
were simply found to be inadequate. In Sheikh v. Canada (M.E.I.), [1990]
3 F.C. 238, the Federal Court of Appeal held that a tribunal’s perception that
the applicant is not credible on an important aspect of the claim can amount to
a finding that there is no credible evidence on which the claim can be based.
The panel was therefore justified in relying on these inconsistencies,
omissions and implausibilities to determine that the applicant was not credible
with regard to her subjective fear.
As I pointed out earlier,
specifically in Gonulcan v. Canada (M.C.I.), 2004 FC 392, [2004] F.C.J.
No. 486 (QL): “In like circumstances, the IRB may find against a refugee
claimant or a person in need of protection without having to consider his
objective fear of persecution or the need to extend protection to individuals,
other than himself, from his country of origin.”
[29]
Therefore,
the Board was entitled to deny Mr. Ould Kaza’s refugee claim based on his lack
of credibility. The Board was not required to make a distinct analysis under
section 97 of the Act.
Bias
[30]
Mr. Ould
Kaza alleges that the Board said from the outset of the hearing that his story
was familiar and that the Board had seen other stories similar in every way in
other matters. Mr. Ould Kaza claims that the Board demonstrated bias
not only against him but against all Mauritanians.
[31]
Mr. Ould
Kaza’s allegations must be dismissed because they are not supported by any
passage from the recording of the hearing before the Board. In fact, an
allegation of bias must be based on concrete evidence and cannot be based on
insinuations, impressions or exaggerations, either.
[32]
Mr.
Justice Luc Martineau stated the following in Jaouadi v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1347, [2003]
F.C.J. No. 1714 (QL), at paragraph 18:
In this regard, in
Arthur v. Canada (Attorney General), 2001 FCA 223, at paragraph 8, the Federal
Court of Appeal indicated that mere suspicion and impressions by an applicant
or his counsel about the actual or apprehended bias of a panel are not
sufficient:
An
allegation of bias, especially actual and not simply apprehended bias, against
a tribunal is a serious allegation. It challenges the integrity of the tribunal
and of its members who participated in the impugned decision. It cannot be done
lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or
mere impressions of an applicant or his counsel. It must be supported by
material evidence demonstrating conduct that derogates from the standard.
[33]
Also, Mr.
Ould Kaza cannot raise the panel’s bias for the purposes of his application for
judicial review since he did not establish clearly that he or his counsel at
the hearing had asked the Board to recuse itself. Accordingly, Mr. Ould Kaza
cannot dispute the Board’s conduct at this stage of the proceedings because he
is deemed to have waived the right to raise that issue (Yassine v. Canada
(Minister of Employment and Immigration) (1994), 172 N.R. 308, [1994]
F.C.J. No. 949 (QL), at paragraph 7; Del Moral v. Canada (Minister
of Citizenship and Immigration), [1998] F.C.J. No. 782 (QL), at
paragraph 10; Canada Human Rights Commission) v. Taylor, [1990] 3 S.C.R.
892, [1990] S.C.J. No. 129 (QL), at paragraphs 89-91).
[34]
Moreover,
it is important to note that at the hearing, despite the comment regarding the
similarity with the allegations of other refugee claimants, the Board did not
make a decision before considering Mr. Ould Kaza’s particular facts. To the
contrary, the Board heard Mr. Ould Kaza’s testimony and confronted
him with several inconsistencies and implausibilities regarding which he was
unable to give reasonable explanations.
[35]
The Board
based its decision on the evidence before it in this case. There was no breach
of natural justice or procedural fairness justifying the intervention of this
Court.
CONCLUSION
[36]
The
Board’s decision regarding Mr. Ould Kaza’s credibility is not patently
unreasonable. It is the Board’s responsibility, as a tribunal of first
instance, to assess the credibility of claimants. This Court cannot intervene
unless there is a patently unreasonable error, which is not the case in this
matter.
[37]
Similarly,
the Board decided on the particular facts in this case and its decision does
not indicate any bias. There was therefore no breach of natural justice. The
application for judicial review must therefore be dismissed.
JUDGMENT
THE COURT ORDERS that:
1. The application for judicial review be dismissed;
2. No
serious question of general importance be certified.
“Michel
M.J. Shore”
Certified true
translation
Kelley A. Harvey, BCL,
LLB
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