Date: 20040608
Docket: IMM-4020-03
Citation: 2004 FC 827
Toronto, Ontario, June 8th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
HUSSAM HILMI AMAN
HASSEM AMAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered Orally from the Bench: Written
for Precision and Citation of Authorities)
[1] The applicants, brothers and citizens of Yemen, have sought judicial review of a decision of the Immigration and Refugee Board, Refugee Determination Division (the "Board"), which denied their claims for refugee status and for protection under ss. 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 on the ground that the claims were not credible.
[2] The Board found inconsistencies between the applicants' oral evidence and their Personal Information Forms (PIF) relating to a shooting incident they had witnessed in Yemen in which a friend had been killed. The deceased, the shooter and the applicants belonged to three different tribes. The applicants claimed that they would be subject to persecution and to a risk of harm from the tribe to which the deceased belonged as they had supported the police finding that the shooting was an accident. In oral testimony, but not in the PIF, the applicants claimed that they were being pressured by a member of the deceased's tribe to appear before a inter-tribal council which could deal with the question of whether punishment should be meted out to the person who had done the shooting. The Board did not believe that the shooting had taken place and further, based on the documentary evidence, that such a council, as described by the applicants, existed and had the authority to deal with the matter.
[3] The applicants argued that the Board had based its negative credibility finding on irrelevant considerations and unreasonable plausibility findings and had failed to consider pertinent documentary evidence about the nature and extent of firearms related violence in Yemen.
[4] The transcript of the hearing before the Board, while extensive, was incomplete due to a break in the recording device tape. It was impossible to determine how much of the hearing was not recorded and could not, as a result, be transcribed. The Court was invited to find that this resulted in procedural unfairness and reflected a bias on the part of the Board against the applicants.
[5] The applicants have not demonstrated that the Board based its decision on irrelevant considerations. The Board was entitled to draw a negative inference against the applicants from the fact that they had not mentioned the pressure to refer the shooting to the tribal council in their PIF. The jurisprudence supports that the Board is entitled to view omissions of relevant and significant facts in the PIF that are then revealed in oral testimony, against a claimant's credibility: Sanchez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 536 (T.D.)(QL) and Akhigbe v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 332 (T.D.)(QL).
[6] I place little significance on the broken tape as there was no evidence to indicate that it had any bearing on the Board's decision. The unbroken portion of the tape was not transcribed until eleven months after the decision was handed down and I think it reasonable to infer that the Board member relied upon his own notes in reaching his decision. In any event, there is nothing on the record to suggest that he misunderstood or misapplied the applicants' evidence.
[7] The applicants argue that they were denied procedural fairness in that first, the Board member could not have referred to a complete record of the hearing prior to making his decision and second, that they were denied access to a complete record in bringing this application. In my view, both arguments are without merit. From my review of the transcript, it covers the salient portions of the hearing that were at issue in these proceedings. The applicants had the opportunity to adduce evidence in this application that the unrecorded portion of the hearing contained explanations for the Board's inconsistency and implausibility findings. They filed no such evidence. The transcript reveals that the Board member took care to offer the applicants opportunities to explain the inconsistencies he saw in their evidence. I see no procedural unfairness in the way in which the hearing was conducted or arising from the broken tape.
[8] The allegation of bias is not supported by anything on the record and applicants' counsel, when pressed, was unable to direct my attention to any basis for the claim. In those circumstances, it should not have been made.
[9] The Board is assumed to have weighed and considered all the evidence provided before it, unless there is valid reason to believe the contrary: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (C.A.) and Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.)(QL). Upon reviewing the documentary reports highlighted by the applicants which were before the Board, I do not find that the Board ignored evidence on the record. It is clear that the Board gave a great deal of weight to a Response to Information Request from the Research Directorate of the IRB, dated February 4, 2003, in which it was found, "Information on a decision-making body that is comprised of representatives of different tribes and deals with tribal revenge cases could not be found among the sources consulted by the Research Directorate. However, according to several news reports, tribal disputes and revenge cases are resolved by tribal leaders..." In my opinion, it was open to the Board to weigh the evidence in this manner, as the primary trier-of-fact.
[10] Finally, I cannot conclude that the Board's credibility findings, overall, are patently unreasonable. A high level of deference should be accorded to the decisions of the Board made on the basis of credibility findings: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). As a result, the appropriate standard of review is patent unreasonableness, unless it is shown that the Board's inferences and conclusions are so unreasonable that they could not have been drawn, or the Board appears to have drawn them capriciously or without regard to the evidence, this Court should not interfere, whether or not it agrees with those inferences: Oduro v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 106 and Aguebor, supra. The Board's credibility findings are not patently unreasonable.
[11] Accordingly, the application is dismissed. Neither party requested and no question is certified.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4020-03
STYLE OF CAUSE: HUSSAM HILMI AMAN
HASSEM AMAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 7, 2004
REASONS FOR ORDER
FOR ORDER BY: MOSLEY J.
DATED: JUNE 8, 2004
APPEARANCES:
SOLICITORS OF RECORD:
|
Ms. Stella I. Anaele
Barrister & Solicitor
Toronto, Ontario
|
FOR THE APPLICANTS
|
|
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
|
FOR THE RESPONDENT
|
FEDERAL COURT
Date: 20040608
Docket: IMM-4020-03
BETWEEN:
HUSSAM HILMI AMAN
HASSEM AMAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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