Date: 20040430
Docket: IMM-2316-03
Citation: 2004 FC 638
BETWEEN:
Jamila EL BRINI
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated March 5, 2003, that the applicant is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Jamila El Brini (the applicant) is a citizen of Morocco. She claims to have a well-founded fear of persecution based on her membership in a particular social group, namely women. She also alleges that she is a person in need of protection.
[3] The IRB held that the applicant was not a "Convention refugee", or a "person in need of protection", because she was not credible and because she did not show that the Moroccan State was unable to protect her.
[4] In matters of credibility, this Court cannot substitute its decision for that of the IRB unless the applicant can establish that it based its decision on an erroneous finding of fact that it 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). It is settled law that the IRB is a specialized tribunal with the power to assess the plausibility and credibility of testimony, so long as the inferences which it draws are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and the reasons are explained clearly and comprehensibly (Hilo v. Canada (M.E.I.) (1991), 130 N.R. 236 (F.C.A.)).
[5] In this case, the IRB determined that the applicant's story was not credible because it contained many omissions, implausibilities and inconsistencies. The IRB noted, inter alia, the inconsistencies in the amended Personal Information Form, regarding the abuse that the applicant says she experienced after 1994 and regarding the complaints that she allegedly filed. Further, the IRB assigned little probative value to the documents submitted because these documents - medical documents and the letter from the applicant's mother dated July 30, 2001 - contained inconsistencies. A review of the file and, especially, the hearing transcripts, shows that the IRB indeed considered the applicant's explanations, but that it simply found that they were inadequate.
[6] The IRB also determined that the applicant had not established that the State was unable to protect her. The State is presumed to be able to protect its citizens. In this case, the applicant alleged that she sought the protection of the authorities, but claims that they did not want to grant her protection because of the status of her husband's family in Morocco and also because the incidents of conjugal violence were not bloody. However, the applicant's testimony on this subject was confused, inconsistent and contradictory, as appears from pages 381 to 387 of the tribunal record; I cannot find that the panel erred in determining that the applicant had not proved with clear and convincing evidence that the State was unable to protect her (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689).
[7] The respondent, finally, is correct to remind us that the IRB found a lack of subjective fear because the applicant's actions, upon leaving Morocco, were inconsistent with the behaviour of a person who really fears persecution. The fact that the applicant had not claimed refugee status when she passed through the United States, and that she waited almost a month before making her claim in Canada, are significant indications of the nature of the alleged fear of persecution and the IRB could therefore reasonably find a lack of credibility of the applicant's alleged subjective fear of persecution (Ilie v. Canada (M.C.I.), [1994] F.C.J. No. 1758 (QL)).
[8] Finally, the applicant's complaint to the effect that the panel was insensitive to her allegation of conjugal violence is quite simply unfounded. A review of the transcript indicates that the atmosphere was entirely appropriate and that the conduct of the presiding member of the panel was beyond reproach. This is undoubtedly why the applicant's first counsel did not intervene on this point during the hearing before the IRB.
[9] For all of these reasons, the intervention of this Court is not warranted and the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
April 30, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2316-03
STYLE OF CAUSE: Jamila EL BRINI v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 1, 2004
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: April 30, 2004
APPEARANCES:
Michelle Langelier FOR THE APPLICANT
Edith Savard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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