Madi v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1062

Date: 20010927

Docket: IMM-1894-00

                                                                                                Neutral Citation: 2001 FCT 1062

BETWEEN:                                                                                              

MILUD MUSA MADI

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                                    REASONS FOR ORDER

HANSEN J.

[1]                 This is an application for judicial review of the March 29, 2000 decision of the Convention Refugee Determination Division (CRDD) in which it was determined the applicant is not a Convention refugee.

[2]                 The applicant, a citizen of Lybia, is an ethnic Berber. He claimed Convention refugee status on the basis of political opinion and ethnicity. The applicant's wife, six children and siblings continue to live in Lybia.

[3]                 The applicant was imprisoned in Libya from 1980 to 1988 for "suspicious anti-government activity". He was not involved in political activities from his prison release in 1988 until his flight a decade later, in October 1998. He worked as a tailor, supported his family and lived without incident during this period of time.

[4]                 On August 27, 1998 the applicant went to Tunisia. While he was in Tunisia, he states his son told him his name was on a "list" for having something to do with a demonstration which took place in August in the city of Yefren. The son told the applicant security forces had come to their home in search of him and that the applicant's brother had been arrested with respect to the same event.

[5]                 On hearing this news, the applicant states he decided not to return to Libya. He stayed in Tunisia and completed plans he had put into motion some months earlier, to come to Canada and claim asylum. The applicant says he began preparations to leave because the situation was deteriorating. In February 1998, he contacted a friend in Ottawa, and asked for an invitation to visit him in Canada. The invitation was forthcoming.

[6]                 Without returning to Libya, the applicant applied for a visitor's visa to Canada, showing his invitation to substantiate his request. The applicant states he stayed in Tunisia from August 27, 1998, until his departure for Canada. He arrived in Vancouver on October 6, 1998. He did not go to Ottawa to visit this friend instead he went to Edmonton, where a nephew resides. He made his refugee claim in Edmonton on October 20, 1998.

[7]                 The presiding member and the member delivered separate oral reasons. While the presiding member adverted to the unpleasant totalitarian nature of Libyan society, he found the applicant "vague and very general and sometimes it was like pulling teeth to get answers from him". The presiding member observed that there was no objective evidence that the August 1998 demonstration had ever occurred.

[8]                 Given the applicant's evidence that he feared the consequences of the demonstration because those who had been previously jailed were picked up anytime there was a problem, he commented that it could reasonably be expected that the applicant would have been picked up following the coup attempt in 1995-96. Yet nothing happened to the applicant as a result of the coup attempt nor did anything happen to the applicant up to February 1998 when he asked his friend for an invitation to Canada. Other than to say the situation was deteriorating, the applicant was unable to specify his reason for wanting to leave Libya in February 1998.

[9]                 The presiding member found the applicant had decided to leave Libya when nothing was happening to him and "manufactured" the August 1998 demonstration to buttress his claim. Even if the demonstration did occur, it was irrelevant since the applicant had already decided to leave. The presiding member concluded that the essential elements of the applicant's claim were not credible.

[10]            The second member also concluded the applicant lacked credibility. He observed that the applicant was not politically active nor was he bothered by the authorities for the ten years following his release from prison. If the government perceived the applicant to be a political opponent, it was reasonable to infer the applicant would have at least been questioned if not arrested following the 1995-96 attempted coup. Although the applicant testified the situation was deteriorating and he wanted to prepare his family for his departure, he was unable to state in what way the situation was deteriorating for him nor was he able to state what he had done to prepare his family for his departure.

[11]            The second member stated he was prepared to accept as plausible the applicant's explanation that following the August 1998 demonstration upon hearing rumours his name was on a list of people to be arrested he fled hoping to cross the border before the list was distributed.

[12]            However, he also noted the applicant was unable to provide a specific reason for wanting to leave in February 1998. There was no evidence the government perceived the applicant to be a political opponent nor was any action taken against the applicant. As well, since the applicant had not been politically active for ten years, he did not accept the applicant's evidence that he was being spied on by the government. The member also found it unlikely the government would have issued a passport to the applicant in 1995 if he was perceived to be a political opponent.

[13]            The second member agreed with the presiding member that it was reasonable to infer a demonstration involving the bombing of three government buildings would have been reported in the documentary evidence.

[14]            The second member also drew a negative inference from the applicant's failure to include the August 1998 demonstration in his PIF narrative.

[15]            The applicant testified he thought his brother who had been arrested following the August 1998 demonstration was still in prison. When confronted with his nephew's evidence from an earlier claim that his brother had been released in February 1999, he testified he had not made inquiries about his brother. The panel member found it implausible that the applicant would not ask relatives living in Canada about the welfare of his brother who had been arrested following the demonstration nor had he made inquiries concerning two nephews who had also been arrested. The panel member found that this raised a doubt as to whether these individuals had ever been arrested or jailed.

[16]            The panel member concluded that there was less than a mere possibility the applicant would face persecution in Libya on the grounds of his perceived political opinion or ethnic origin.

[17]            The applicant raised a number of issues within each of the following broad categories of issues: that the panel breached the rules of natural justice, based its decision on erroneous findings of fact, and erred in its adverse findings of credibility.

Breach of the rules of natural justice

[18]            The applicant first submits the panel breached the principles of natural justice by their excessive interventions and vigorous questioning during the course of his testimony. The applicant acknowledges that panel members may intervene to seek clarification or to resolve inconsistencies or confusion. However, in the present case the panel members were actively involved throughout the applicant's testimony. The applicant states this is evidenced by the fact that counsel for the applicant posed 122 questions and the panel members interjected with 168 questions during the course of the hearing. The applicant argues the frequent interruptions effectively prevented him from presenting his case in a full and organized fashion.

[19]            The applicant also argues the numerous interventions by the panel members coupled with a remark made by one of the panel members to the applicant's counsel also gives rise to a reasonable apprehension of bias. According to the affidavit of counsel representing the applicant at the hearing, the day after the hearing one of the panel members stated to him during a break in the proceedings and outside the hearing room "where do you find these people, they must be very frustrating to deal with". It is counsel's belief that in the statement the panel member was referring to the applicant and to other claimants whose claims were heard on the day of the applicant's hearing and on the following day.

[20]            The applicant relies on the reasons in Iossifov v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1318 as authority for the proposition that excessive interruptions which prevent a claimant from presenting his case constitutes a breach of the principles of natural justice. In Iossifov, supra, the CRDD had repeatedly prevented the applicant from presenting his evidence regarding past persecution. Although the Board stated it accepted the contents of the applicant's PIF, it refused to state whether it constituted past persecution. As well, the Board failed to reach a conclusion in its reasons regarding part persecution. In these circumstances, the Court concluded that the applicant had not been provided with a full and fair hearing of his claim.

[21]            As well, the applicant submits the facts of the present case are similar to those in Mark v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 69 where Reed J. observed:

The decision is rife with error and a reading of the transcript indicates that both members of the panel approached the applicant's claim with hostility. The record shows that both members entered into what can only be described as the vigorous cross-examination of the applicant and his witnesses...

[22]            In my opinion, both of these decisions are distinguishable on their facts. Although the applicant asserts he was prevented from fully presenting his case, he has not pointed to any aspect of his claim he was not given the opportunity to present. Nor does the transcript reveal any hostility on the part of the panel members towards the applicant.

[23]            Having said this, the panel's extensive interventions still require consideration. In this regard, the Federal Court of Appeal's reasons in Mahendran v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 549 are particularly instructive. In Mahendran, supra, the Court expressed concern at the excessive nature of a panel member's interventions during the course of a hearing. The Court held, however, that having regard to the powers conferred on a tribunal pursuant to subsection 67 (2) of the Immigration Act, R.S.C. 1985, c. I-2 a panel member is entitled to question a claimant as part of the proper discharge of his duties. The Court went on to consider the nature of the questioning to ascertain whether it gave rise to a reasonable apprehension of bias as submitted by the applicant.

[24]            The Court characterized the questioning as being "an energetic exercise in attempting to clear up some inconsistencies in the evidence and evidenced "some frustration at being unable to get a clear picture of the general purport of the evidence being given". The Court then considered whether this gave rise to a reasonable apprehension of bias having regard to the following test articulated in [1978] 1 S.C.R. 369">Committee for Justice and Liberty et al. v. National Energy Board, [1978] 1 S.C.R. 369:

... what would an informed person, viewing the matter realistically and practically - and having thought the mater through - conclude. Would he think that it is more likely than not that the Tribunal here, whether consciously or unconsciously, would not decide fairly.

[25]            The Court concluded:

Keeping in mind that, pursuant to subsection 68(3) of the Immigration Act, this Tribunal is not bound by any legal or technical rules of evidence and also remembering that the Tribunal is charged with deciding each application on the basis of evidence which it considers credible or trustworthy, one can perhaps have some understanding for Tribunal members who, in their enthusiasm to perform their duties in a creditable fashion, may sometimes create a perception of over aggressiveness and unfairness. However, for the reasons given herein, I conclude that the conduct of the Tribunal members sought to be impeached does not offend the principles set out in the Committee for Justice and Liberty, supra case.

[26]            In the present case, a reading of the transcript does show numerous interruptions and questions by the panel members throughout the applicant's testimony. As noted earlier, the panel found the applicant vague and very general in his responses. This assertion is well founded. In my view, the interventions were attempts on the part of the panel to focus the applicant's testimony and to elicit the factual basis for the claim. With respect to the remark made the day after the hearing, although counsel believes the remark was directed to the applicant, this is speculation on his part. Clearly, this was an ill-considered, inappropriate remark. However, having regard to the test in [1978] 1 S.C.R. 369">Committee for Justice and Liberty et al. v. National Energy Board, supra, I am not persuaded that the circumstances of the present case give rise to a reasonable apprehension of bias.

[27]            The applicant further submits he was deprived of the opportunity to respond to the case against him because he was not provided with the RCO Screening Form prior to the hearing identifying discrimination versus persecution as one of the issues he would have to address at the hearing. At the outset, it must be stated that there is no case against this or any other refugee claimant. The very nature of the refugee claim is to establish all the elements of the Convention refugee definition and the onus is on the claimant to do so: a well-founded fear of persecution is the cornerstone of such a claim. Although the applicant based his claim, as he stated, 75% on political opinion and 25% on his Berber ethnicity, it is apparent from his Personal Information Form (PIF) and his testimony at the hearing that the central aspect of his claim and his reason for fleeing Lybia was his fear of persecution because of his political opinion. The applicant offered no evidence to support his fear of persecution due to his Berber ethnicity. In these circumstances, I am unable to conclude there was a breach of natural justice.   

[28]            The next issue raised by the applicant stems from the following statement in the panel's reasons:

... Now, if it is true that there was a demonstration, that demonstrators bombed three government buildings, then it is reasonable to infer that there would be some mention of this in the sources that we regularly consult, because we do get many refugee claimants from Libya and similar countries, and there is no mention of it at all.

[29]            The applicant argues that since the panel did not specify the documentary evidence on which it relied in making this statement and if the panel was referring to documentary evidence not disclosed prior to the hearing, it would be unreasonable to expect the applicant to address this concern. The applicant maintains that again he was deprived of the opportunity to answer the case made against him. In my view, this argument is based on speculation. In the absence of any evidence indicating that the panel relied on documentary evidence other than that disclosed to the applicant it is unfounded. It is not necessary to reiterate my earlier comment regarding an applicant being required to meet the case against him.

[30]            The applicant also submits the following observation by the panel is unreasonable since it is a question seeking information beyond the applicant's knowledge. The panel stated:

If the government had perceived you as a political opponent, it is reasonable to infer that they would have at least questioned you about your role during the 1995-1996 coup, if not arrested you, because this is a government which arrests first and asks questions later. But nothing happened.

[31]            Given the applicant's testimony that he was fearful of being arrested for the August 1998 demonstration because individuals who had previously been imprisoned are targeted any time there is a problem, the inference drawn from the applicant's failure to provide an answer to the question is not unreasonable.

Erroneous findings of fact

[32]            The applicant submits it was unreasonable for the panel to expect that there would be documentary evidence regarding the August 1998 demonstration in light of the repressive nature of the Libyan regime and its control of the media. I accept the respondent's argument that having regard to several incidents in 1998 resulting in the arrest of political opponents reported in the 1999 Country Reports on Human Rights Practices it was not unreasonable for the panel to expect some reporting of the August 1998 demonstration had it occurred.

[33]            The applicant also submits the panel's failure to specifically address his explanation for not including in his PIF narrative the August 1998 demonstration constitutes reviewable error. The applicant explained at the hearing that he did not mention the demonstration in his PIF because he had not attended the demonstration. The respondent argues the panel was entitled to draw a negative inference from the omission in the PIF of a significant event central to the applicant's claim. Further, the failure to refer in its reasons to every aspect to the evidence considered in reaching a decision does not undermine the entire decision. The applicant stated in his PIF "On the 27^th of August, I travelled by car to Tunisia". With respect to the Commission in the PIF, the panel member stated:

Finally, I should point out that this demonstration is not mentioned in your narrative. You have said that, "On the 27^th of August, I travelled by car to Tunisia." Now, the Courts have said that it is not necessary that you should include every detail in your Personal Information Form, but they have said that they expect that the most significant parts would be included. Now, if you went to Tunisia at this time because you heard that the government was going to arrest you and that they had put you on the list of wanted people, it is reasonable to infer that you would put here that, "I fled to Tunisia because I heard that the government was going to arrest me cause of this demonstration in Yeferin." There is no mention of the demonstration in Yeferin. There is no mention of the government looking for you.

[34]            While the panel member found the failure to mention the demonstration was an important omission, it is also evident that the panel members drew a negative inference from the fact that the applicant had not given any reason for his trip to Tunisia. Having said this, I accept the applicant's argument that where an explanation is offered for an omission in the PIF, the panel is bound to consider the explanation before drawing a negative inference from the omission. In my view, however, this error alone does not warrant the Court's intervention. The panel provided ample cogent reasons for rejecting the applicant's claim.

Adverse finding of credibility

[35]            In his reasons, the presiding member stated:

But the Panel must be satisfied, that the circumstances of your claim are credible. And in particular, we focus on the testimony that you gave with regard to your leaving the country and the attendant circumstances around that departure in 1998. I must say, before I get into that, that I had some concerns at the beginning of the hearing that your answers were vague and very general and sometimes it was like pulling teeth. So I wasn't as sanguine about your testimony as Mr. Cousineau seemed to be. I had some credibility concerns about the difficulty in getting answers from you. But in the end, they were not major difficulties, but it was problematic, and I would think that if your story was true, it would be less difficult to get at than it was. But as I say, it is not a major concern, but it is worth mentioning.

[36]            The applicant submits the panel's failure to identify specific instances of vague or general answers constitutes reviewable error. I do not accept this argument. Within the context of the entire reasons, this was simply a general observation regarding the nature of the applicant's testimony. Alone, this would not have been sufficient to impugn the applicant's credibility, however, the panel went on to detail the specific instances which caused them to arrive at their negative credibility finding.

[37]            The applicant also takes issue with the panel's findings that it was implausible the government would be spying on the applicant and that the applicant could have obtained a passport if his name was on a list of individuals being sought by the government.

[38]            While the documentary evidence does refer to a pervasive surveillance system in Libya, given the applicant's evidence that he had not been politically active following his release from prison and had not been bothered by the authorities, it was reasonably open to the panel to question the veracity of the applicant's testimony that he suspected he was being spied on. As well, having regard to the documentary evidence with respect to the government control over foreign travel, the panel's finding that it is implausible the government would have issued a passport to a political opponent is not unreasonable.

[39]            For these reasons, the application for judicial review is dismissed.

                                                                                "Dolores M. Hansen"             

                                                                                                      J.F.C.C.                      

OTTAWA, ONTARIO

September 27 , 2001