Date: 20041001
Docket: IMM-8096-03
Citation: 2004 FC 1321
BETWEEN:
AHMED SALEM OULD, Mohammed Maoulou
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of the decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB) dated September 9, 2003, that the applicant is not a "Convention refugee" or a person in need of protection" as defined under sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] The applicant is a citizen of Mauritania alleging that he has a well-founded fear of persecution based on his political opinion. Further, he claims that he is a "person in need of protection" because he would be subjected to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment if he were to return to his country of origin.
[3] According to the IRB, the applicant was not credible given that his testimony was riddled with contradictions, implausibilities and inconsistencies.
[4] First, the applicant argues that the IRB acted capriciously in relying on its own specialized knowledge in determining that he had initiated immigration proceedings in the United States and not a refugee claim.
[5] On this point, the following exchange took place at the hearing:
[TRANSLATION]
BY THE CHAIRPERSON (addressing the claimant)
Q. You cannot, in the United States, when you apply . . . for refugee status, you cannot work during that period.
A. Yes.
Q. Well, listen, Sir, we had courses here. That clear, clear. The Chief Justice of the United States came to explain the U.S. system to us, from A to Z, and when a person asks for refugee protection in the United States, the person cannot obtain a work permit. You can say yes, now, but that . . . to our knowledge, it's no.
A. Well me, I was sent a work permit that I have.
(Emphasis added.)
[6] Inter alia, the applicant relies on section 18 of the Refugee Protection Division Rules, SOR/2002-228, which provides the following:
18. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
(a) make representations on the reliability and use of the information or opinion; and
(b) give evidence in support of their representations.
18. Avant d'utiliser un renseignement ou une opinion qui est du ressort de sa spécialisation, la Section en avise le demandeur d'asile ou la personne protégée et le Ministre - si celui-ci est présent à l'audience - et leur donne la possibilité de :
a) faire des observations sur la fiabilité et l'utilisation du renseignement ou de l'opinion;
b) fournir des éléments de preuve à l'appui de leurs observations.
[7] In this case, the applicant had been confronted with the IRB's concerns at the hearing itself and had not requested the opportunity to give other evidence in support of his representations. I therefore accept the respondent's argument to the effect that the IRB was entitled to prefer its specialized knowledge to the testimony and to the applicant's evidence which it determined was not credible.
[8] In any event, I note based on a review of the exchanges during the hearing that the IRB did not rely solely on the issue of the applicant's claim in the United States, since there were a number of contradictions in the record.
[9] The applicant had stated in his oral and written testimony, inter alia, that he has been actively involved in at least two organizations, i.e. the Union of Democratic Forces and the Action for Change. However, the applicant had earlier indicated on the immigration document "Schedule 1, Additional Required Information" that he did not belong to any organization. Similarly, the applicant stated in his oral and written testimony that he had been arrested three times and severely tortured. At question 1(H) of the immigration document "Schedule 1, Additional Required Information", he stated that he had never been detained or imprisoned.
[10] Further, the applicant testified at his hearing that he was not wanted by the police in his country. However, in support of his refugee claim, he filed a "Judgment issued by default against the claimant", a document which established the contrary.
[11] In my view, therefore, on review of the entire transcript of hearing and the decision, the IRB relied upon the cumulative contradictions and implausibilities to reasonably justify its negative credibility finding.
[12] In its analysis of the evidence, the IRB stressed the fact that the applicant had spent four months in the United States in the year 2000, before claiming refugee status. The IRB clearly did not accept his explanations, which it found implausible. This Court has held that a refugee claimant must claim refugee status as quickly as possible when the applicant is in a country able to offer protection (Skreytyuk v. Canada (M.C.I.), [1998] F.C.J. No. 783 (F.C.T.D.) (QL)). Accordingly, the IRB was entitled to find that the applicant's behaviour was not consistent with that of a person having a subjective fear of persecution.
[13] With respect to the applicant's status in the United States, the IRB also noted many contradictions between the applicant's "Information on Admissibility to Canada and Claim to be a Convention Refugee" form and the Personal Information Form (PIF). In the first document, the applicant declared that he had been a "visitor" in the United States since March 2000. The information in the second document, to the effect that he had been a "refugee" in the United States, contradicted his prior statement.
[14] Furthermore, in the "Information on Admissibility to Canada and Claim to be a Convention Refugee" form, the applicant declared that he had never claimed refugee status in another country. Yet, he filed a document into evidence for the purpose of establishing that he had claimed refugee protection in the United States on July 26, 2000, which is a significant contradiction.
[15] Under the circumstances, this Court cannot substitute its own assessment of the facts for that of a specialized tribunal such as the IRB, as the applicant has not persuaded me that it made a decision based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). The IRB decision is supported by significant evidence in the record and I cannot find a patently unreasonable error.
[16] Accordingly, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
October 1, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-8096-03
STYLE OF CAUSE: AHMED SALEM OULD, Mohammed Maoulou v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 31, 2004
REASONS FOR ORDER: ` Pinard J.
DATE OF REASONS: October 1, 2004
APPEARANCES:
Rachel Benaroch FOR THE APPLICANT
Andrea Shahin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Rachel Benaroch FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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