Date: 20010227
Docket: IMM-2064-00
Neutral Citation: 2001 FCT 123
BETWEEN:
OKBA ALEJLY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.:
[1] Okba Alejly, the applicant, is a 22 year old citizen of Iraq who, in his Personal Information Form ("PIF"), claimed status as a Convention refugee on the ground of his Sunni religion. Mr. Alejly brings this application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated March 23, 2000 whereby it was determined that Mr. Alejly was not a Convention refugee.
[2] The CRDD rejected Mr. Alejly's claim on the basis that it found his evidence to be implausible. The CRDD's analysis of the evidence was brief, as follows:
| The panel finds implausible that the claimant would have remained in the country for so long either in northern Iraq or Baghdad (one year) if the authorities were truly after him or his brother. The claimant said he was only following the smuggler's instructions and was waiting for his passport to be prepared in the capital but the scenario the claimant depicts defies common sense. |
| He inferred that he did not leave northern Iraq and exit into Turkey because although it was not under government control the area was permeated by Iraqi intelligence agents. The panel finds this explanation unsatisfactory given this was the very route used by his father and other brother to leave the country. The claimant's only lame explanation on this point was that this same route was too difficult for him. Why would it be too difficult for him if his older brother and father were able to exit in this fashion? However, what was more significant was his extended return to the "belly of the beast" itself: Baghdad, the very nerve centre of the Iraqi government. Why would he stay there for five months if the Iraqi government were after him? Why would he take such a circuitous route out of the country via Baghdad then into Jordan instead of exiting the country out of northern Iraq into Turkey as his two other family members had done? The panel find this whole scenario implausible given the extended wait in the country in contrast to the immediate urgency of his original flight from his hometown. |
| Counsel presented evidence in Exhibit C-3 that fundamentalist Sunni Wahhabis would be viewed with suspicion by the Iraqi government. However, the panel concludes there was no Wahhabi-oriented fundamentalist family mosque back home that attracted government attention. The panel also finds implausible, for example, that Sunni merchants from Baghdad would fund an opposition Wahhabi mosque without difficulty given the country conditions. Likewise, the panel finds implausible the claimant's contention that Shiite attendees at the mosque would not be viewed with suspicion given widespread government control and surveillance. |
| Moreover the claimant's own knowledge and involvement in his mosque in Toronto seemed superficial in contrast to his avowed involvement in his Sunni mosque back home and his father being an Imam. He did not know the names of either the Toronto mosque's Imam or any senior member of the community. He could only name its cleaner. The panel finds this demonstrates both a lack of religious fervour and lack of participation which belie his alleged involvement in Iraq. [footnote omitted] |
[3] In seeking judicial review of the decision, Mr. Alejly asserted that the CRDD based its decision on perverse findings of fact not made in accordance with the evidence before it and on a misperception of the true nature of his claim. Mr. Alejly specifically attacked three findings of the Board.
[4] First, Mr. Alejly attacked the CRDD's conclusion that it was implausible that he did not follow the same route out of Iraq to Turkey as his father and older brother did and the panel's finding that it was implausible that he would remain in the country for as long as he did if the authorities were seeking him.
[5] Mr. Alejly testified orally, and in his PIF, that after his father was summoned a second time to the El Nasriyah Security offices a decision was made to flee the country. Mr. Alejly fled with his father, his older brother and his younger brother. They fled from El Nasriyah to Baghdad where they stayed with a friend and where they learned that the security forces had raided their home as well as the houses of some of their relatives. Hearing that the search for them had "intensified", the applicant, his father and two of his brothers fled Baghdad, going to the north of Iraq, in the hope that they would be able to enter Turkey. Mr. Alejly's mother, his 21 year old sister, and three brothers ranging in age from 7 to 11 were left in the family home. Mr. Alejly testified that the security forces "don't take kids -- children or women".
[6] Mr. Alejly went on to testify that once in the north his father made arrangements with smugglers. His father left first for Turkey, followed sometime later by his older brother. Mr. Alejly said that after two or three months the smugglers told him that it would be very difficult to smuggle him into Turkey so that he should "just rest now" until the smugglers had an opportunity to smuggle him in. Thereafter, Mr. Alejly said he decided that it was too difficult to travel through Turkey so that he decided to go into Jordan and the smugglers agreed to take him to Jordan. The arrangement was made that Mr. Alejly would leave the north of Iraq to return to Baghdad and thereafter he would enter Jordan with a false passport. Mr. Alejly then left to return to Baghdad, leaving his younger 17 year old brother in the north alone. At the time Mr. Alejly was 19 years of age.
[7] Documentary evidence before the CRDD showed that at this time the Iraqi government reacted against anyone who resisted it with extreme repression, and that security forces played a central role in maintaining the environment of intimidation and fear on which the government's power rested. The government was said to continue to execute summarily perceived political opponents, authorities routinely used arbitrary arrest and detention, and the government severely limited freedom of religion and movement. Amnesty International reported that in 1997 the regime arrested family members as hostages in order to force a relative who may have escaped to surrender. The authorities were reported to hold family members and close associates responsible for the alleged actions of others, searches were conducted without warrants, and districts were sealed off so that house to house searches could be conducted.
[8] In that context, the CRDD was entitled to weigh Mr. Alejly's evidence and conclude that it did not stand up to scrutiny. The CRDD's implausibility findings with respect to the length of time Mr. Alejly stayed in Baghdad and his escape route were reasonably open to it. Mr. Alejly submitted that the CRDD failed to take into account that while he returned to Baghdad he remained there in hiding. The CRDD did in fact reference this in its recitation of Mr. Alejly's oral testimony.
[9] Mr. Alejly also attacked the conclusion of the CRDD that he was unable to demonstrate sufficient "religious fervour" or "participation" to support his alleged involvement in his father's mosque in Iraq.
[10] Mr. Alejly testified that after his arrival in Canada he initially lived in a mosque in Toronto and that he continued to attend the mosque for the one year preceding his hearing before the CRDD. Mr. Alejly also testified that while in Iraq he actively assisted his father who was an imam of a mosque. Specifically, Mr. Alejly testified that he and his older brother used to organize religious discussions and that he and his brother would write the lectures which his father would deliver.
[11] In light of those facts, and the fact that in his PIF Mr. Alejly claimed Convention refugee status on the ground of his religion, I do not agree that the CRDD made a patently unreasonable finding when it concluded that Mr. Alejly's knowledge and involvement in his mosque in Toronto seemed superficial and demonstrated both lack of religious fervour and lack of participation. Nor, in view of Mr. Alejly's testimony of his past religious activities, do I conclude that this conclusion was "culturally-centric" as submitted on Mr. Alejly's behalf.
[12] More problematic are the remarks of the CRDD to the effect that there was no "Wahhabi-oriented fundamentalist family mosque back home", that it was implausible that Sunni merchants from Baghdad would fund an opposition Wahhabi mosque, and that it was implausible that Shiite attendees at the mosque would not be viewed with suspicion. Here the CRDD did err. The applicant's evidence was that the mosque was in fact a Sunni mosque, that his father was not a follower of the teachings of Mohammed Abdul Wahab and that it was a false accusation that Mr. Alejly and his father were Wahabiyas.
[13] Mr. Alejly argued that these errors went to the core of his claim and submitted that the CRDD fundamentally misconstrued the true basis of his claim.
[14] I do not accept that the CRDD misconstrued the true basis of his claim. The transcript of the hearing before the CRDD shows that one of the panel members, Mr. Cram, clarified the applicant's testimony as follows:
| CRAM: Were you, and was the mosque, a Wahabiya affiliated mosque, or was it only a suspicion? |
| INTERPRETER: A suspicion, you mean, like a.... |
| CRAM: That it wasn't true, but people believed that your -- or somebody believed that it was. |
| CLAIMANT: Wahabiya means the Fundamentalist Muslim. We were just regular Muslims who built a -- we were regular Muslims who built a mosque but only on this basis, the accusation came. |
| CRAM: Okay. But you were, and your family were regular Muslims, Sunni Muslims, I take it. |
| CRAM: Who were accused of being linked to the others. |
| CLAIMANT: Yes, also being accused being backed by Saudi Arabia. |
[15] Given that I am satisfied that the CRDD understood the basis on which Mr. Alejly advanced his claim to refugee status, I cannot find that any erroneous references to a Wahabbi-oriented mosque or to its financing by Sunni merchants are sufficient to vitiate the decision of the CRDD. There were other reasonable bases for the CRDD's adverse plausibility finding.
[16] For these reasons, the application for judicial review will be dismissed. Counsel did not suggest any question for certification, and no question is certified.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
February 27, 2001
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