Murji v. Canada (Minister of Citizenship and Immigration), 2004 FC 148

Date: 20040204

Docket: IMM-3617-03

Citation: 2004 FC 148

OTTAWA, Ontario, this 4^th day of February, 2004

Present:           THE HONOURABLE MR. JUSTICE KELEN                                

BETWEEN:

                                                 DAYMOND WALJI LALJI MURJI

Applicant

- 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 ("Board") dated April 25, 2003, which determined that the applicant is not a convention Refugee or a person in need of protection.

FACTS

[2]                 The applicant is a 53 year old male citizen of Tanzania who alleges a fear of persecution based on his South Asian race, and Ismaili Muslim religion. The applicant alleges that members of the Ismaili community in Tanzania are targeted for harassment, discrimination and bodily harm by Africans in Tanzania. The applicant alleges that there have been incidents of discrimination and harassment perpetrated against him and other members of the South Asian and East Indian community by African Christians.

[3]                 The applicant testified to one particular incident in June 1999 when assailants entered his home and beat him up so severely that he required hospitalization. He also described incidents of extortion by African pork vendors operating outside of the Ismaili cemeteries, and showing disrespect for Ismaili burial traditions. The applicant contends that state protection is not available to him because all South Asian or East Indian businessmen in Tanzania are targeted for extortion by Tanzanian police officers. The applicant arrived in Canada on a visitor's visa in May 2000 and did not make a refugee claim until November 8, 2001. He testified that he believed he was under no obligation to make a refugee claim because his visitor's visa did not expire until April 19, 2003. He also testified that his mother's death caused him to be depressed and that he was suffering from Post-Traumatic Stress Disorder (PTSD).

[4]                 The Board rejected the credibility of the applicant's claim for a number of reasons. The Board found that there were a number of contradictions and discrepancies in his evidence. In particular, the applicant had testified that he had been unable to work after the beating he received, but letters written on his behalf indicated that he had indeed worked during the period he claimed to be convalescing. The applicant was unable to explain the discrepancies except to state that the letters were incorrect, or that they were written in order to misrepresent his circumstances of employment, so that he could obtain a visitor's visa to travel to Canada. At page 5 the Board stated:

However, the letter was presented by the claimant as evidence in support of his claim for refugee protection and in view of the other contradictions and inconsistencies internal to the claimant's evidence for which he failed to provide a plausible or persuasive explanation, the panel draws as an adverse inference, that the claimant is misrepresenting the incidents described in his evidence as leading to his decision to depart from Tanzania. Based on its credibility findings, the panel disbelieves the entirety [emphasis in original] of the incidents of persecution, intimidation and harassment described in the claimant's evidence as taking place in Tanzania and causing his decision to leave his country of citizenship.

[5]                 There were also discrepancies in the applicant's testimony regarding the medical treatment he received, after the June 1999 attack. At page 5 the Board stated:

In support of its findings, the panel notes that the claimant stated in the PIF that he received medical treatment in hospital after the June 1999 attack during an overnight stay. At the refugee proceedings, the claimant instead stated that he stayed in hospital for two days and three nights in June 1999. [...] The claimant was asked if he could provide any corroborative evidence consisting of a medical report or a police report from Dar Es Salaam in support of his allegations. The claimant stated that he never obtained such documentation as confirmation of the incident.

[6]                 Again, the explanation the applicant provided was that he made a mistake in his PIF. The Board also rejected the applicant's explanation for the delay in filing his claim, of approximately one year. Beginning at page 6 the Board stated:

The existence of a visitor's visa for any length of time does not effect the requirement for addressing a request for asylum in a timely and prompt manner.

[...]

In Heer, the Federal Court of appeal recognized that delay in claiming refugee status "is an important factor which the Board is entitled to consider in weighing a claim for refugee status." The case law indicates that delay may demonstrate a lack of subjective of persecution, the reasoning being that someone who was truly fearful would claim refugee status at first opportunity.

[7]                 The Board considered the applicant's psychological report but concluded that it did not change its assessment of the applicant's credibility. At page 8:

With respect to the psychological report of Dr. Judith Pilowsky, the panel does not take issue with Dr. Pilowsky's diagnosis that the claimant suffers from anxiety, Post-Traumatic Stress Disorder (PTSD) and depression. [...] However, as stated in Rokni, a medical or psychiatric report submitted as evidence "can not possibly serve as a cure-all for any and all deficiencies in a claimant's testimony." The Court reiterated its position in Danailov where, with respect to the assessment of a physician's evidence and the question of the assessment of credibility, it was stated: "that opinion evidence is only as valid as the truth of the facts on which it is based."

[8]                 The Board also found that state protection was available to the applicant. At page 9, the Board stated:

Where a state is in effective control of its territory, has military, police and a civil authority in place, and makes serious efforts to protect its citizens, the simple fact that it is not always successful will not be enough to establish that victims are unable to avail themselves of state protection [...]

And at page 12:

The documentary evidence describes that South Asians in Tanzania receive the same level of state protection available to the general population since, as stated in the documentary evidence: "There are no laws or official policies that discriminate against Asians." The panel notes that no government can guarantee the protection of all its citizens at all times. The claimant stated that he did not avail himself of police protection when Africans harassed him and extorted money nor, as he testified, did he make any attempts to complain to the central police authorities...the claimant also stated that he did not complain to the Chairman of the Aga Khan Council, his community's representative, about his difficulties with the police extorting bribes. [...] the panel notes that the onus is on the claimant to demonstrate that he took all reasonable steps to obtain state protection and he did not describe such efforts in his testimony.

ANALYSIS

(a)         Applicant's Position

[9]                 The applicant submits that the Board breached its duty of fairness by making state protection an issue without providing an opportunity to make submissions in that respect. The applicant further submits that disbelieving the entirety of the evidence is too severe and does not reflect a reasonable interpretation of the evidence. Finally, the applicant submits that the Board erred by failing to consider the psychological report corroborating his evidence of mistreatment, and by failing to consider his explanations for his delay in filing a claim.

(b)         Respondent's Position

[10]            The respondent submits that the Board is entitled to make negative findings on credibility on the basis of contradictions and inconsistencies. The respondent contends that the Board provided a detailed explanation as to why it found the applicant's testimony implausible in certain fundamental areas. The respondent submits that none of the Board's reasons are so unreasonable as to warrant intervention. The respondent submits that the applicant failed to rebut the presumption of state presumption by providing "clear and convincing evidence" of the state's inability to protect. The respondent contends that the documentary evidence indicates that the Tanzanian government is implementing policies that are favourable to the Asian community, and that East Indians and Muslims are not persecuted in Tanzania or in need of protection. Finally, the respondent submits that the Board considered the psychological report and correctly noted its limitations.

Standard of Review

[11]            The standard of review applicable to the Board's findings of fact, and assessment of credibility is patent unreasonableness. And as a whole, the Court will not substitute the Board's

decision with its own, except the Board's decision is clearly wrong. See Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), and De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.). The standard of review applicable to the alleged breach of natural justice is correctness.

Credibility Assessment

[12]            The applicant submits that the Board was too severe in disbelieving the entirety of his evidence, and therefor did not act reasonably. I cannot accept this submission since the Board has complete jurisdiction to assess the plausibility of testimony, and is best placed to assess the credibility of an applicant, see Aguebor, supra. Given the inconsistencies and contradictions that the Board identified, and the applicant's weak explanations, I am satisfied that the Board's credibility finding is not patently unreasonable.

State Protection and Natural Justice

[13]            The applicant's submission that the Board failed to provide an opportunity to make submissions on state protection is well-founded. The presumption of state protection is well established in the jurisprudence of this Court, see Villafranca (1992), 150 N.R. 232 (F.C.A.), and Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.    Counsel did not make submissions on this issue because the Board indicated it wanted to hear submissions and evidence on only two issues: credibility and delay.

[14]            After the Board had stipulated that these were the only issues on which it wanted to hear submissions, it proceeded to decide on the ground of state protection. This negated its stipulation. This is, as Mahoney J.A. held in Navaaneethakrishnan (Navaneetharrishnana) Velauthar et al. v. The Minister of Employment and Immigration (1992), 141 N.R. 239 (F.C.A.), a "gross denial of natural justice". At page 2 of that decision:

There has been a gross denial of natural justice here. The panel had stipulated that the Appellants feared persecution and that the only issue was whether that persecution was encompassed in the Convention refugee definition. It proceeded, on grounds of credibility, to negate its stipulation. The Appellants were denied the opportunity to know and answer the case against them by a deliberate decision of the presiding member in which his colleague acquiesced.

In this case the applicant was denied the opportunity to know and answer the case against him by the deliberate decision of the Board member presiding over the hearing. However, a breach of natural justice does not warrant setting aside the decision if correcting the error would not affect the result of the case. See Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202.

[15]            Regardless of the Boards's credibility finding, the Board is obliged to assess whether the applicant is a person in need of protection under section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. However, the Board's breach of the rules of natural justice prevented the applicant from considering that this issue needed to be addressed. The documentary evidence shows that fifty percent of the East Indians in Tanzania have left (or fled) the country in the past decade. The applicant may have considered that this objective evidence needed to be developed to show that the state does not protect, regardless of the Board's concern about the credibility of the applicant's case. Accordingly, I cannot conclude that this breach of natural justice would not affect the outcome of the case.

Psychological Evidence

[16]            Contrary to the applicant's assertions, the Board did consider the psychological report. However, it did not accept the report's credibility findings since the underlying facts were in question. In this respect, I adopt the reasoning of Reed J. (as she then was) in Danailov v. Canada (MCI), [1993] F.C.J. No. 1019 at paragraph 2:

With respect to the assessment of the doctor's evidence, to find that that opinion evidence is only as valid as the truth of the facts on which it is based, is always a valid way of evaluating opinion evidence. If the panel does not believe the underlying facts it is entirely open to it to assess the opinion evidence as it did.

[17]            For these reasons, this application for judicial review is allowed.

[18]            Neither counsel recommended certification of a question. No question will be certified.

ORDER

THIS COURT ORDERS THAT:

This application for judicial review is allowed, and the matter is referred back to the Board for redetermination by another member or panel of members.

                                       "Michael A. Kelen"                                                                                                              _______________________________

             JUDGE

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              IMM-3617-03

STYLE OF CAUSE:              DAYMOND WALJI LALJI MURJI v. MCI   

PLACE OF HEARING:                      Toronto, Ontario

DATE OF HEARING:                        January 28, 2004

REASONS FOR ORDER

AND ORDER:                                      THE HONOURABLE MR. JUSTICE KELEN

DATED:                                                February 4, 2004

APPEARANCES:

SOLICITORS OF RECORD:

                          FEDERAL COURT

                                                               Date: 20040204

                                                   Docket: IMM-3617-03

BETWEEN:

DAYMOND WALJI LALJI MURJI

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

AND ORDER