Bouaouni v. Canada (Minister of Citizenship and Immigration), 2003 FC 1211

                                                                                                                                          Date:    20031020

                                                                                                                             Docket:    IMM-5570-02

                                                                                                                             Citation:    2003 FC 1211

Ottawa, Ontario, this 20^th day of October, 2003

PRESENT:    THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                    RIADH BEN SOLTA BOUAOUNI

                                                                                                                                                       Applicant

                                                                              - and -

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

Introduction

[1]                 This is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) rendered September 18, 2002.

Facts

[2]                 The applicant, Riad Ben Solta Bouaouni, is a 32-year-old man from Tunisia. He claims to have a well-founded fear of persecution on the basis of his political opinion as a member of the "Union générale des étudiants tunisiens" or "UGET". The applicant states that he fears both the police and Islamic student activists.

[3]                 The applicant entered Kairwan University in 1994 and became involved in a general strike against the education system in November of 1994. After being chased by police, he spent four days in the desert without food. The applicant decided to join the UGET, an organization designed to protect the rights of students, and did so on December 7, 1996.

[4]                 The applicant states that he was beaten in February 1997 by Islamic students and that the security forces stood by and did not intervene, since they were eager to disgrace the radical student movement. The applicant states that the police later infiltrated the student movement on campus. On April 13, 1997, the applicant was arrested, interrogated by the police and asked to reveal the names of student activists. The applicant refused, and was hit with tools and tortured with electric shock and cigarette burns. Two months later, the applicant was again brought to the police station and beaten. He was prevented from travelling to another province without first notifying the police of his plans and whereabouts.

[5]                 The applicant states that he was also sought by Islamic activists who thought that their names had been revealed to the police by the applicant. The applicant left Tunisia, fearing for his life. He arrived in Canada on July 31, 2000, and claimed refugee status on January 18, 2001.

Board's Decision

[6]                 The Board outlined the applicant's narrative, as described above. The Board held that, after reviewing the evidence, it did not believe the applicant's story of persecution. The Board stated that the applicant's testimony was marred by omissions, contradictions, and was not credible.

[7]                 The Board stated that the applicant had failed to include in his Personal Information Form (PIF) important events revealed in oral testimony. The Board stated that the applicant testified orally that he had been harassed and beaten by Islamic students on a regular basis during the first half of 1996 and that they had forced him not to renew his UGET membership. When questioned about why he did not put this information in his PIF, the applicant replied that he was asked to provide his story in 2 pages. The Board stated that it did not accept this explanation. It noted that the applicant only joined the UGET on December 7, 1996, which post-dates the above harassing incidents.

[8]                 The Board also stated that the applicant also omitted from his PIF the account of being harassed and beaten daily from 1997 to 2000 by 10 to 15 Islamic students who had been released from prison in 1997-1998. The Board stated that this was a different account from that detailed in his PIF, where the applicant only stated that he was sought by Islamic students who had been let out of jail in 1997 and 2000.

[9]                 The Board cited Basseghi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1867 (QL), for the proposition that an applicant must provide all pertinent details in his PIF narrative and expand on them during oral testimony.

[10]            The Board stated that it did not find credible the applicant's statements that the police stood by while he was beaten by the other students, since the documentary evidence showed that police are known to detain members of Islamic militant groups. The Board also found improbable the applicant's story that he did not give the names of Islamic activists to police, nor request police protection, after being harassed and beaten by the activists for three years. The Board also questioned how the applicant was able to secure a passport and leave the country legally when the documentary evidence shows that the government restricts the movement of those critical of it.

[11]            Finally, the Board found that the applicant had contradicted himself concerning his arrest on April 13, 1997. The applicant declared that on April 13, 1997, the police came to his house and took him to the police station. However, during another part of his testimony he stated that he was given a summons on April 12, 1997, and that he went to the police station on April 13, 1997. Confronted with this inconsistency, the applicant stated that two policemen came to his house on April 12, 1997, and then gave him the summons to appear on April 13, 1997. The Board did not accept this explanation, because the summons states that it was received by the applicant on April 13, 1997. Consequently, it drew a negative credibility inference.

[12]            The Board stated that it did not give any weight to the applicant's medical reports, concerning certain scars and wounds, because it did not believe the applicant's story and the applicant had not shown that the wounds received were linked to a Convention ground or that he was a victim of torture. The Board reiterated that it found the applicant not to be credible due to inconsistencies and contradictions in his testimony.

[13]            The Board held that the applicant's delay in claiming refugee status was inconsistent with a subjective fear of persecution and found that the applicant did not have subjective fear of persecution. The Board concluded that the applicant had not discharged the burden of showing that he was persecuted and that he was not a Convention refugee, nor a "person in need of protection" according to paragraphs 97(1)(a) and (b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).

Issues

[14]            The applicant raises the following issues:

            (i)         Did the applicant receive a fair and impartial hearing?

            (ii)        Did the Board fail to give due regard to the applicant's medical reports?

            (iii)      Did the Board fail to consider arguments raised during the hearing that the applicant was a refugee "sur place"?

            (iv)      Did the Board err in its application of s. 97 of the Act?

Analysis

            (i) Did the applicant receive a fair and impartial hearing?

[15]            The applicant submits that the Board demonstrated a sceptical attitude and bad faith in its analysis of the applicant's claim, and states that this amounts to bias which resulted in an unfair hearing.

[16]            The applicant also submits that the contradictions between the applicant's written and oral testimony noted by the Board are merely omissions in the PIF that the applicant chose to enlarge upon during oral testimony and not contradictions. The applicant argues that the failure to mention in his PIF that he had been harassed by Islamic students regularly from 1997 to 2000 is not an omission that in any way affects the persecutory events alleged in his PIF. Concerning the applicant's recollection of the exact date of the April 1997 interrogation by police, the applicant notes that he stated in testimony that he was not exactly sure of the date. The applicant submits that the Board's finding of contradictions in the applicant's testimony are not supported by the evidence and are indicative of the Board's bad faith.

[17]            Concerning the applicant's arguments on bias, the respondent submits that arguments concerning apprehension of bias must be submitted at the first opportunity: Del Moral v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 782 (QL). The respondent argues that the applicant should have raised the issue of bias at the earliest opportunity. In Del Moral, supra, the applicant's counsel had not objected nor raised any issues of bias during the hearing.    Dubé J. stated that a party arguing reasonably apprehension of bias on the part of a tribunal must allege a violation of natural justice at the earliest practicable opportunity. The jurisprudence of this Court has established that the failure of an applicant to raise the issue of bias forthwith leads to a presumption that he has given up on invoking the reasonable apprehension of bias. (Abadalrithah v. M.E.I. (1988), 40 F.T.R. 3067; Hernandez v. M.C.I. [1999] A.C.F. 607 (T.D.)).

[18]            The Supreme Court of Canada, in [1978] 1 S.C.R. 369">Comm. for Justice v. National Energy Board, [1978] 1 S.C.R. 369 at page 394, expressed the proper test to be applied when considering reasonable apprehension of bias as follows:

....What would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think it is more likely than not that [the Tribunal], whether consciously or unconsciously, would not decide fairly.

[19]            The applicant's argument on bias should have been raised at the earliest opportunity at the hearing. However, even if the argument of bias had been before the Board at the hearing, I am of the view that there is insufficient evidence to support the applicant's contention that the Board member had a reasonable apprehension of bias. The inconsistency, noted by the Board in the applicant's testimony regarding the April 1997 interrogation, is well founded in the evidence and the Board's adverse credibility finding cannot be said to be patently unreasonable. I do not view these findings as evidence of bias. Based on the evidence before me and applying the test as set out by the Supreme Court in [1978] 1 S.C.R. 369">Comm. for Justice, supra, the applicant's argument that the Board member had a reasonable apprehension of bias cannot be sustained.

(ii) Did the Board fail to give due regard to the applicant's medical reports?

[20]            The applicant also argues that the Board erred in failing to give weight to the medical reports submitted concerning cigarette burns on his body. The applicant submits that the jurisprudence requires that where a medical report is submitted the Board must acknowledge and comment on such report if it contradicts the Board's finding: Berete v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 359 (QL) at para. 6. In Kouassi v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1199 (QL), at paras. 13-15, Tremblay-Lamer J. stated that the Board had an obligation to state why it did not give weight to a medical report that detailed physical wounds and psychological symptoms that appeared to support the applicant's refugee claim.     

[21]            The respondent notes that in the cases referred to by the applicant the Board failed to mention the medical reports at all, whereas in the present case the Board made reference to the applicant's report and stated why it did not give it any weight. The respondent states that if the medical report is based on facts that are not believed by the Board then it is appropriate for it not to give the report much credence.    

[22]            I agree with the respondent that the cases raised by the applicant may be distinguished by the fact that in those cases the Board failed to even mention the medical reports. In the case at bar, the Board gave reasons as to why it held that it gave no weight to the report. It stated that the report did not show how the applicant's scars were related to a Convention ground or to his alleged torture and ill-treatment. The Board further stated that since it did not believe the applicant's story, it gave no weight to the report.

[23]            The applicant challenges the Board's negative credibility and plausibility findings. On such questions, the Federal Court of Appeal has determined that the applicable standard of review is patent unreasonableness. In Aguebor v. Minister of Employment and Immigration, (1993), 160 N.R. 315 at 316-317, para. 4, Decary, J.A., wrote:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position that the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As 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.....

[24]            I have carefully reviewed the Board's credibility and plausibility findings and have considered the applicant's oral and written submissions with respect to these findings. I am of the view that the Board gave clear reasons as to why it found the applicant not credible. The Board properly weighed all of the evidence before it and did not err by not specifically mentioning every element of evidence in its reasons. Its credibility and plausibility findings were open to it on the evidence and it properly noted certain elements of evidence omitted in the applicant's PIF. In the circumstances, I do not find the Board's credibility and plausibility findings to be so unreasonable as to warrant the intervention of the Court.

            (iii)      Did the Board fail to consider arguments raised during the hearing that the applicant was a refugee "sur place"?

[25]            The applicant submits that the Board erred in failing to consider arguments that he is a refugee "sur place", a person who was not a refugee when he left his country, but who became a refugee at a later date: seeGhazizadeh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 465 (QL).

[26]            In the applicant's memorandum of fact and law, he states the following:

Le tribunal a mentionné lors de l'audition avoir de connaissances spécialisées sur la Tunisie, ainsi le tribunal doit être au courant de la déclaration publique de la ministre de l'immigration et de la citoyenneté de l'époque l'Honorable Mme Caplan, vers la mi-février 2002, à l'effet qu'environ 150 tunisiens venus au Canada durant l'année 2000 à titre de visiteur, que plusieurs d'entre eux manque à l'appel, et d'autres ont demandé le statut de refugié et que des mesures sont prise avec l'ambassade de Tunisie au Canada afin de les retracer;

Suite à cette annonce publique, les autorités tunisiennes au Canada ont immédiatement fait une vérification des ressortissants tunisiennes ayant obtenu un visa de visiteur à l'ambassade de Canada durant cette période, et ont alerté la sécurité intérieur tunisienne de procéder à des vérifications sur place en Tunisie;

Lors de l'audition, le demandeur a témoigné que la police tunisienne est toujours à sa recherche;

[27]            The applicant argues that the statement by the Minister and actions of her officials have caused authorities in Tunisia to become aware that the applicant claimed refugee status in Canada and that this would cause him serious problems with these same authorities in Tunisia. As a result, the applicant submits that he is a refugee "sur place" and that the Board erred in failing to specifically address the issue in its reasons.

[28]            I do not agree with the applicant's submissions. There is simply no evidentiary basis to support the proposition that the applicant is a refugee sur place. The applicant's argument is premised on two factors; first, that the Board, based on its specialized knowledge, should have taken notice of the Minister's statement; and second, that Tunisian authorities in Canada would have informed Tunisian security forces of the applicant's presence in Canada.

[29]            The allegations put forward in the applicant's memorandum of fact and law are not supported by an affidavit of the applicant as required by paragraph 10(2)(a) of the Federal Court Rules, 1993, SOR/93-22, as amended SOR/98-235. There is insufficient evidence to establish that the Minister's statement would have had the alleged impact on the applicant so as to support a claim of refugee "sur place". The applicant's testimony is speculative and the applicant's allegations in his memorandum of fact and law are not supported by the evidence. Consequently, the applicant's claims that he is a refugee "sur place" is without merit.

            (iv) Did the Board err in its application of s. 97 of the Act?

[30]            The applicant submits that the Board incorrectly interpreted s. 97 of the Act in applying the same legal test as that mandated by the Convention refugee case law under s. 96 of the Act.

[31]            Sections 96 and 97 of the Act provide:

[32]            The applicant argues that the test under s. 97 should be more objective than that applied for Convention refugee status under s. 96. He argues that subsection 97(1) mandates an objective analysis of a claimant's situation, with due regard to country conditions. The applicant argues that, in the present case, the adverse credibility determination made by the Board is not sufficient to exclude the applicant from being a person in need of protection because the Board must go on to analyse country conditions in Tunisia to determine whether he would be subject to a danger of torture or a risk to life or to a risk of cruel and unusual treatment or punishment.

[33]            The respondent submits that the Board did not believe that the applicant had been tortured or imprisoned in Tunisia or that he was a person identified by the authorities as an Islamic sympathizer. Consequently, the respondent suggests that there were no serious reasons to believe that the applicant was a "person in need of protection" and the Board did not err in its application of s. 97 of the Act. The respondent further states that, if the applicant's argument concerning the proper interpretation of s. 97 were accepted, all claimants from Tunisia would automatically be granted the status of "persons in need of protection" under the Act.

[34]            The treatment of s. 97 has not yet been fully considered by this Court owing to the Act's recent vintage. To properly assess the issue raised by the applicant, I will review certain articles of the International Convention Against Torture which are incorporated in s. 97 of the Act. In circumstances where there is no jurisprudence of this Court on this issue, my analysis will be guided by certain decisions of the United Nations Committee Against Torture (CAT).

[35]            I note that paragraph 97(1)(a) of the Act is derived from Article 1 of the Convention Against Torture (the Convention), which is defined by subsection 2(1) of the Act, as follows:

[36]            Article 1 of the Convention sets out a definition of torture, and provides:

[37]            Although not set out in the schedule to the Act, Article 3 of the Convention provides:

[38]            The United Nations CAT has set out its interpretation of Article 3 of the Convention in a number of decisions. In Tahir Hussain Khan v. Canada (Communication No. 15/1994, U.N. Doc. A/50/44, 1995), the CAT stated:

The Committee must decide, pursuant to paragraph 1 of article 3, whether there are substantial grounds for believing that Mr. Khan would be in danger of being subject to torture. In reaching this conclusion, the Committee must take into account all relevant considerations, pursuant to paragraph 2 of article 3, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. The aim of the determination, however, is to establish whether the individual concerned would be personally at risk of being subjected to torture in the country to which he would return. It follows that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute a sufficient ground for determining that a person would be in danger of being subjected to torture upon his return to that country; additional grounds must exist that indicate that the individual concerned would be personally at risk. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person cannot be considered to be in danger of being subjected to torture in his specific circumstances.

                                                                                                                                              (Emphasis added)                                  

[39]            It appears from the wording of Article 3 of the Convention that the substantial grounds must be evaluated with respect to "all relevant considerations", including the existence of a "consistent pattern of gross, flagrant or mass violations of human rights". However, it is clear from the CAT's decision in Khan that the existence of a pattern of human rights abuses in a country is not, in itself, sufficient to show that an individual would be personally at risk.

[40]            In Kaveh Yaragh Tala v. Sweden (Communication No. 43/1996, U.N. Doc. CAT/C/17/D/43/1996) [hereinafter Tala] the CAT repeated the passage from Khan quoted above. In Tala, the credibility of the claimant was at issue. However, the CAT concluded that substantial grounds existed for believing that Mr. Tala would be in danger of being subjected to torture if returned to his home country. It stated, at 10.3:

The State party has pointed to contradictions and inconsistencies in the author's story, but the Committee considers that complete accuracy is seldom to be expected by victims of torture and that the inconsistencies that exist in the author's presentation of the facts do not raise doubts about the general veracity of his claims, especially since it has been demonstrated that the author suffers from post-traumatic stress disorder. Further, the Committee has noted from the medical evidence that the scars on the author's thighs could only have been caused by a burn and that this burn could only have been inflicted intentionally by a person other than the author himself.

                                                                                                                                             (Emphasis added)                                     

[41]            A claim under section 97 must be evaluated with respect to all the relevant considerations and with a view to the country's human rights record. While the Board must assess the applicant's claim objectively, the analysis must still be individualized. I am satisfied that this interpretation is not only consistent with the United Nations CAT decisions considered above, but is also supported by the wording of paragraph 97(1)(a) of the Act, which refers to persons, "...whose removal ... would subject them personally...". There may well be instances where a refugee claimant, whose identity is not disputed, is found to be not credible with respect to his subjective fear of persecution, but the country conditions are such that the claimant's particular circumstances, make him/her a person in need of protection. It follows that a negative credibility determination, which may be determinative of a refugee claim under s. 96 of the Act, is not necessarily determinative of a claim under subsection 97(1) of the Act. The elements required to establish a claim under section 97 differ from those required under section 96 of the Act where a well-founder fear of persecution to a convention ground must be established. Although the evidentiary basis may well be the same for both claims, it is essential that both claims be considered as separate. A claim under section 97 of the Act requires that the Board apply a different test, namely whether a claimant's removal would subject him personally to the dangers and risks stipulated in paragraphs 97 (1) (a) and (b) of the Act. Arguably, the Board may also be required to apply a different standard of proof, which is an issue that I will leave for another day, since it was not argued on this application. Whether a Board properly considered both claims is a matter to be determined in the circumstances of each individual case bearing in mind the different elements required to establish each claim.

[42]            In the present case the Board found important omissions, contradictions and implausibilities in the applicant's evidence, which led it to conclude that the applicant's story was not credible. I have already determined that these findings were open to the Board. The Board specifically disbelieved the applicant's allegation of arrest, detention and torture by the police forces and provided detailed reasons for its findings. Further, the Board showed an appreciation of the country conditions in Tunisia and specifically considered, in its reasons, the country documentation before it. There is no evidence to suggest that the Board failed to consider evidence before it or that it misapprehended any aspect of the evidence. Apart from the evidence that the Board found to be not credible, there was no other evidence before the board in the country documentation, or elsewhere, that could have led the Board to conclude that the applicant was a person in need of protection. I find that the Board did err in failing to specifically analyse the s. 97 claim. However, in the circumstances of this case and in the exercise of my discretion, I also find that the error is not material to the result. I find that the Board's conclusion, that the applicant was not a "person in need of protection" under paragraphs 97(1)(a) and (b) of the Act, was open to it on the evidence.

Conclusion

[43]            For the reasons outlined above, the application judicial review will be dismissed.

[44]            The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.

                                                                            ORDER

THIS COURT ORDERS that:

1.         The application for judicial review of the Refugee Protection Division of the Immigration and Refugee Board rendered September 18, 2002, is dismissed.

2.          No question of general importance is certified.

                                                                                                                                "Edmond P. Blanchard"             

                                                                                                                                                               Judge                          

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-5570-02

STYLE OF CAUSE:                           RIADH BEN SOLTA BOUAOUNI v. MCI

PLACE OF HEARING:                     Montréal, Québec

DATE OF HEARING:                       July 9, 2003

REASONS FOR ORDER AND ORDER:                          Blanchard J.

DATED:                                                October 20, 2003

APPEARANCES:

Me. Jean-François Fiset                                                                FOR APPLICANT

Me. Ian Demers                                                                             FOR RESPONDENT

SOLICITORS OF RECORD:

Me Jean-François Fiset                                                                 FOR APPLICANT

401-10 St. Jacques West

Montréal, Québec, H2Y 1L3

Morris Rosenberg                                                                           FOR RESPONDENT

Deputy Attorney General of Canada

Department of Justice

Montréal, Québec,     H2Z 1X4