Date: 20110526
Docket: IMM-5837-10
Citation: 2011 FC 593
Ottawa, Ontario, this 26th
day of May 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
YOUSSOUF HASSAN ALI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of a decision of a member of the Refugee
Protection Division of the Immigration and Refugee Board (the “Board”), pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, (the “Act”) by Youssouf Hassan Ali (the “applicant”). The Board
determined that the applicant was neither a Convention refugee nor a person in
need of protection under sections 96 and 97 of the Act.
[2]
The
applicant is a citizen of Djibouti and a member of the Yibir tribe, a minority
group which has suffered discrimination in Djibouti for many years. In the past they were
refused access to education, though this has changed in recent years. The
applicant was born on March 25, 1977.
[3]
The
applicant completed a BAC in administration and then went to university for two
years. He wrote the teachers’ test and received training as a teacher. He
obtained a job at the same school where he was trained, and taught there for
four years.
[4]
The
applicant alleges that he had been subjected to discrimination all his life.
Other children at his school would mock him. He was unable to marry anyone from
another tribe. The principal of the school in which he taught was prejudiced
against him because of his ethnicity.
[5]
The
applicant allegedly met with nine other teachers to create a secret movement to
fight discrimination against the Yibir tribe. Two other members were from the
Yibir tribe, the others were from other tribes. They contacted human rights
organizations by email regarding the discrimination suffered by Yibirs.
[6]
The
applicant alleges that in February 2005, as a result of his association with
this movement, he was arrested, interrogated and tortured. The applicant left Djibouti on December 2, 2007.
* * * * * * * *
[7]
The
Board found that the applicant was not a credible or trustworthy witness. His
evidence was inconsistent at times and there were key omissions in his
testimony.
[8]
The
Board found the following contradictions and omissions in the applicant’s
testimony:
-
He first stated that the human rights organization contacted by the group
(ARDH) was in Djibouti, and then said it was located in Belgium;
-
He stated that he received email responses from this group, but did not have
copies of the emails because he deleted everything to avoid being traced;
-
He said the incident in February 2005 was the first time he had problems with
the police, but his Personal Information Form (“PIF”) stated that the police
had intervened in the movement’s meetings several times in the past. Confronted
with this, he said he was only discussing the imprisonment incident;
-
He said he was first seen by a prison doctor, and then by his own doctor, but
his PIF made no mention of the second doctor;
-
He twice stated that he was the only member of the group imprisoned, then
changed his story and said he meant he was the only one tortured;
-
He stated that he was tortured because he was the most educated member of the
group, but the Board noted all members were supposedly fellow teachers;
-
He stated he was the only one tortured, and then said the other Yibir members
were tortured as well.
[9]
The
Board found that these contradictions and omissions amounted to a lack of
credibility and trustworthiness on the applicant’s part, and cited the Federal
Court of Appeal in Sheikh v. Canada (Minister of Employment and Immigration),
[1990] 3 F.C. 238 at para 8: “even without disbelieving every word an applicant
has uttered, a […] panel may reasonably find him so lacking in credibility that
it concludes there is no credible evidence relevant to his claim […]”.
[10]
The
Board also found that the discrimination suffered by the applicant did not rise
to the level of persecution. The Board cited both the Federal Court of Appeal’s
definition of persecution in Rajudeen v. Canada (Minister of Employment and
Immigration) (1984), 55 N.R. 129 at 133-134, Canada (Attorney General)
v. Ward, [1993] 2 S.C.R. 689 at 733-734, and the definition given by
Professor James C. Hathaway in his book The Law of Refugee Status,
(Toronto: Butterworths, 1991) at pp 104-105, and found that in order to be
considered persecution, the mistreatment suffered or anticipated must be
serious enough to constitute a key denial of a core human right. The Board
found that while the claimant may have been subjected to discriminatory acts,
such as being restricted in his choice of whom to marry and suffering mockery
from fellow students, these acts did not amount to persecution. The Board noted
that the applicant completed 17 years of school and obtained the job he sought.
* * * * * * * *
[11]
Upon
hearing counsel for the parties and upon considering the evidence, I am
satisfied that the Board’s credibility findings are generally well supported by
the evidence, including the applicant’s PIF and his testimony. I find that it
was open to the Board to draw negative inferences from the noted contradictions
and omissions in the evidence, in light of the variation in the applicant’s
responses regarding elements central to this claim. As the Board had the
benefit of seeing and hearing the applicant and is in the best position to
gauge his credibility and assess the evidence, the Court ought not substitute
its own appreciation to that made by the Board.
[12]
With
respect to the issue of persecution or discrimination, the applicant argues that
the Board erred by not looking at the cumulative effect of the discrimination
suffered in order to determine whether it amounted to persecution. The
applicant cites Justice Mahoney in Sagharichi v. Canada (Minister of Employment
and Immigration),
[1993] F.C.J. No. 796 (C.A.) at para 3:
It
is true that the dividing line between persecution and discrimination or
harassment is difficult to establish, the more so since, in the refugee law
context, it has been found that discrimination may very well be seen as
amounting to persecution. It is true also that the identification of
persecution behind incidents of discrimination or harassment is not purely a
question of fact but a mixed question of law and fact, legal concepts being
involved. It remains, however, that, in all cases, it is for the Board to draw
the conclusion in a particular factual context by proceeding with a careful
analysis of the evidence adduced and a proper balancing of the various elements
contained therein, and the intervention of this Court is not warranted unless
the conclusion reached appears to be capricious or unreasonable.
[13]
Sagharichi is also clear that a
finding of this nature is within the jurisdiction of the Board. While the
applicant clearly disagrees with the Board’s finding on this issue, in my view
there is no evidence that the Board’s finding was unreasonable given the
applicant’s history. The applicant had received 17 years of education, had
obtained the job of his choice, and had held this job for four years prior to
leaving the country. While he may have faced harassment and discrimination, I
do not find it unreasonable for the Board to have determined that this did not
amount to persecution.
[14]
Finally,
the applicant submits that the Board erred by failing to consider the
documentary evidence corroborating his claim, namely that despite his success
in obtaining education and a job, he did so despite serious discrimination.
[15]
In
my view, in light of the Board’s finding that the applicant did not suffer
persecution and that his allegations of police persecution were unfounded, it
was unnecessary to discuss the documentary evidence regarding Djibouti and Somalia in general terms. The
Board found that the applicant did not personally suffer these effects; this
was determinative of the applicant’s claim.
[16]
For
the above-mentioned reasons, I find that the Board’s conclusions fall within
the “range of possible, acceptable outcomes which are defensible in respect of
the facts and the law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at para 47).
[17]
Consequently,
the application for judicial review is dismissed.
[18]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review of the decision of the Refugee Protection Division of the Immigration
and Refugee Board determining that the applicant was neither a Convention
refugee nor a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
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