Date: 20070730
Docket: IMM-4299-06
Citation: 2007 FC 794
Ottawa, Ontario, July 30,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
CASSIM MOHAMMED MAMOON
EBRAHIM MOHAMMED MAMOON
(a.k.a. Ebrahim Mohamme Mamoon)
Applicants
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review arises from a decision of the Refugee
Protection Division of the Immigration and Refugee Board rendered on July 19th,
2006 by which the protection claims of Cassim Mohammed Mamoon and Ebrahim
Mohammed Mamoon were denied.
BACKGROUND
[2]
The
Applicants are brothers from Tanzania. They are from a
prominent business and political family and their father is a member of the ruling
party, Shama Chama Mapinduzi (CCM). He is also a Deputy Mayor of the Ilala
Municipal Council at Dar es Salaam.
[3]
The
Applicants’ claims to refugee protection were based on allegations of
persecution involving physical violence and threats made by political opponents
of their father and directed at all of the members of the family between 2004
and 2005. It appears from the record that the senior Mr. Mamood was
instrumental in assisting the Applicants and their sisters to leave Tanzania and he has
promoted the within refugee claims.
[4]
Notwithstanding
the political prominence of the family in Tanzania and the severity and
frequency of the alleged persecution (including beatings, threats to the sisters
of rape, the precipitation of their mother’s suicide and the murders of other
CCM members), the Applicants acknowledged in their respective Personal
Information Forms (PIF) that neither they nor anyone on their behalf had ever
sought police or state protection before they came to Canada. The Applicants’
PIF declarations both included the following passage with respect to the issue
of state protection:
“Our father, the City Councillor, though
subjected to death threats and an assault, did not seek state protection for
our family because he was fully aware of the police reputation for corruption
and incompetence. He believed that if he approached the authorities, they
would only demand a bribe – and fail to deliver any protection, even if he paid
the bribe. Tanzania is plagued by widespread
official corruption.”
[5]
On
January 5, 2006, the Applicants’ father swore an affidavit which contained the
following statement on the same issue:
“That all these incidences have been
reported to both police and the Sunni Muslim Jamaat but the CUF members have
continued with the aforesaid criminal acts.”
ISSUES
[6]
(a) What
is the appropriate standard of review for the issues raised on this application?
(b) Did
the Board err in its treatment of the issue of state protection?
ANALYSIS
[7]
The
issues raised on this application involve questions of mixed fact and law
applicable to the Board’s state protection conclusions. These are issues which
are reviewable on a standard of reasonableness: see Hinzman v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 584, 2007 FCA 171, at
para. 38.
[8]
The
Board rejected these claims on the basis a lack of credibility and because the
Applicants had failed to rebut the presumption of state protection. Both of
those findings are based on a solid evidentiary foundation and cannot be
disturbed.
[9]
The
Board found the Applicants’ explanations for failing to pursue police
protection and for the inconsistency between their PIF’s and their father’s
affidavit, to be implausible. Inasmuch as the Applicants’ PIF’s purported to
offer an explanation for their father’s decision not to pursue state
protection, it was reasonable for the Board to expect that these stories would
match. Cleary, they did not. The Board’s findings on these credibility issues
are unimpeachable. Indeed, the whole idea that a leading political figure in
the ruling party of Tanzania could not and would not seek police protection
for his family from the history of violence alleged by the Applicants borders
on the absurd.
[10]
It
is also noteworthy that if the Applicants’ father had reported these allegations
of persecution to the police as he had deposed, he was in a position to provide
corroboration of that fact along with detailed evidence bearing on the police
response. His affidavit, however, said absolutely nothing about the adequacy
of the police response to his reports. Instead, he alluded only vaguely to “continued”
criminal activity by his political opponents. That the Board found this
affidavit to be unconvincing is hardly surprising and it was, therefore,
entirely justified in finding that the Applicants had failed to rebut the presumption
of state protection with clear and convincing evidence.
[11]
This
case is factually similar to the case of Goolram v. Canada (Minister
of Citizenship and Immigration), [2005] F.C.J. No. 798, 2005 FC 562 where
Justice Judith Snider discussed the obligation to seek police protection in
cases such as this:
“The Applicant’s efforts to access police
assistance and the evidence before the Board, in this case, are much
different. The Applicant did not seek out police assistance for his alleged
attack by PNC. With respect to the issue of state protection, there was not a
single document before the Board that concludes that the police refused to
pursue Indo-Guyanese complaints. Thus, the situation before the Board in this
case is not one, as was before Justice MacTavish, where there are conflicting
reports on police treatment of Indo-Guyanese citizens. Quite simply, there is
no objective evidence to support the Applicant’s contention that the police
would not help him if he were to find himself victimized by the PNC or any
other criminals.”
[12]
The
Applicants have failed to establish that the Board made any reviewable error in
refusing their respective claims to refugee protection. In the result, this
application is dismissed. Neither party proposed a certified question and no
issue of general importance arises on this record.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4299-06
STYLE OF CAUSE: CASSIM
MOHAMMED MAMOON ET AL v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 24, 2007
REASONS FOR JUDGMENT
AND JUDGMENT BY: BARNES, J.
DATED: July 30, 2007
APPEARANCES:
DEBRA SHELLY FOR
THE APPLICANT
JANET CHISHOLM FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
ROBERT GERTLER
& ASSOCIATES FOR THE APPLICANT
BARRISTER &
SOLICITOR
5341 DUNDAS
STREET WEST
TORONTO, ON M9B 1B1
P: 416-231-9188
EXT. 35
F: 416-231-9492
JOHN H. SIMS,
QC FOR THE RESPONDENT
TORONTO, ON
P: 416-952-6991
F: 416-954-8982
Email this Content