Date: 20031001
Docket: IMM-6333-02
Citation: 2003 FC 1135
Ottawa, Ontario, October 1, 2003
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
RAFAT MOHAMED AHMED,
LANA ABDOULKADER MOUSSA
and DALIA RAFAT MOHAMED
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board, (the "Board") dated November 5, 2002 wherein the Board determined that the applicant Mohamed Ahmed Rafat (the "applicant"), his wife and his daughter were not Convention refugees, nor persons in need of protection.
[2] The applicant, his wife and his daughter are citizens of Djibouti. The applicant is the designed representative for his daughter, and his wife bases her claim on her husband's.
[3] The applicant has worked as a registration officer for Air France since 1986 and has been station manager since 1996. He has a French passport and a French ID card.
[4] The applicant alleges that in 1993, he was beaten and detained for 24 hours after meeting with the president of the Front Uni de l'Opposition Djiboutienne ("FUOD") who wanted to regroup all the parties opposed to the government; he was detained, questioned and tortured again for three days in 1994 during the Yemeni conflict because Yemeni secret service agents were hunting down fugitive generals and he was offering hospitality to some of his family members who were in the air force. In October 1997, he was detained for 24 hours and beaten by the Services de Sécurité and was accused of being on France's payroll because he had prevented police from moving in on a French human rights defender as part of his duties at the airport.
[5] The applicant's uncle was a lieutenant in Hassan Gouled's presidential guard. The applicant claims he helped his uncle leave Djibouti in August 1998.
[6] From January to May 2000, the applicant alleges being questioned by security agents on his uncle's whereabouts. During a detention in May, one of the agents pointed a gun at the applicant's head, though the applicant did not mention this in his Personal Information Form (PIF).
[7] On July 24, 2000, he came to Canada with his family on a vacation. He returned to Djibouti a few days later to help his elderly parents back to Yemen. The applicant alleges he was questioned on his uncle's whereabouts again on August 12, 2000 and once again that they pointed a gun at his head. This fact was also omitted from his PIF.
[8] In October 2000, the applicant took advantage of a training session in Paris, and a free plane ticket, came to Canada and applied for Convention refugee status on October 14, 2000.
[9] Essentially, the Board found that the applicant's behaviour in the year prior to his refugee claim was inconsistent with a person who feared for his safety. It found the applicant's explanation for not claiming refugee status in France, a country for which he held a valid passport, to be inconsistent with a subjective fear of persecution. Further, it did not find credible that despite having been harassed by Djibouti security services since the 1980's, detained and pointed a gun at his head in May 2000, the applicant had travelled to Canada and back to Djibouti three times before claiming refugee status.
[10] It is well established that the Board is entitled to decide adversely with respect to an applicant's credibility based on contradictions and inconsistencies in an applicant's story, or based on evidence that is implausible. Where such findings are clearly made and reasons are given, this Court should not interfere, even if the evidence could conceivably lead to a difference conclusion (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)).
[11] However, failure to make reference to case-specific documents directly relevant to the central issue will give rise to a conclusion that the tribunal did not take into account all of the evidence before it.
[12] In Atwal v. Canada (Secretary of State) (1994), 82 F.T.R. 73, Gibson J. articulated at para. 10:
It is trite to say that a Tribunal is not obliged to refer in its reasons for decision to all of the evidence that was before it. The fact that a Tribunal fails to do so does not, in ordinary circumstances give rise to a conclusion that the Tribunal has failed to take into account all of the evidence that is before it. But I conclude that that principle does not apply to a failure to make reference to a case-specific document that is evidence directly relevant to the central issue addressed in the Tribunal's decision. [...]
[13] As pointed out by Evans J. in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, the burden of explanation increases with the relevance of the evidence in question. He stated at para. 17:
[...] the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": [...] In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. [...]
[14] In the case at bar, the testimony of the applicant was corroborated by credible documentary evidence, more particularly two letters, one from Mr. Alhoumekani himself and one from the Government of Djibouti in exile, stating that Mr. Alhoumekani's family, including the applicant, has been the target of pressure and threats from the Djibouti government.
[15] These documents appear squarely to contradict the Board's finding of fact and should have been analyzed in its reasons for decision. I infer from the silence that the Board made an erroneous finding of fact "without regard to the evidence" (Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312).
[16] For these reasons, the application for judicial review is granted. The matter is referred back for redetermination by a newly constituted panel.
ORDER
THIS COURT ORDERS that the application for judicial review is granted. The matter is referred back for redetermination by a newly constituted panel.
"Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6333-02
STYLE OF CAUSE: RAFAT MOHAMED AHMED, LANA ABDOULKADER MOUSSA and DALIA RAFAT MOHAMED
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 29, 2003
REASONS FOR ORDER
AND ORDER OF THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: October 1, 2003
APPEARANCES:
Mr. Warren L. Creates FOR APPLICANTS
Ms. Lynn Marchildon FOR RESPONDENT
SOLICITORS OF RECORD:
Perley-Robertson, Hill & McDougall LLP FOR APPLICANTS
Barristers & Solicitors
90 Sparks Street
Ottawa, Ontario
K1P 1E2
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
K1A 0H8
Email this Content