Date: 20001128
Docket: IMM-2124-00
OTTAWA, Ontario, the 28th day of November, 2000
PRESENT: The Honourable Mr. Justice Rouleau
Between:
MOKHTAR BOUCHEMA
Applicant
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
[1] The application for judicial review is allowed.
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20001128
Docket: IMM-2124-00
Between:
MOKHTAR BOUCHEMA
Applicant
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board ("the RD") rendered on March 24, 2000, ruling that Mokhtar Bouchema ("the applicant") is not a Convention refugee as defined in subsection 2(1) of the Immigration Act ("the Act").
[2] The applicant is a citizen of Algeria.
[3] The applicant alleges that he had been a distributor of alcoholic beverages since 1989.
[4] He alleges that on September 8, 1999, the Armed Islamic Group ("the GIA") ordered that he close down his shop and threatened him and he pretended to go along.
[5] He alleges that in the following week (around September 15, 1999), four individuals attacked him, struck him and insulted him and fled with the day's receipts. Following this attack, the applicant closed his shop and filed a complaint with the police.
[6] On September 21, 1999, the applicant was summonsed from the police station. He was told that the police investigation had produced no results.
[7] On October 15, 1999, the applicant was summonsed a second time by the police. He claims he was held for one night, was threatened and was charged with collaborating with the GIA. The applicant was released on condition that he reopen his shop.
[8] On November 2, 1999, the applicant was summonsed a third time by the police. He claims that he refused to obey and went into hiding.
[9] The applicant left his country on December 6, 1999. He stayed in France for about ten days. On December 12, 1999, the applicant came to Canada to request the protection of the Canadian authorities. He alleges a fear of being persecuted should he return to his country by reason of the political opinions attributed to him.
[10] The RD concluded that the applicant lacked credibility and refused to award him refugee status. The RD held that the applicant's allegation that he feared the authorities and his claim that he was sought and threatened by his government for refusing to reopen his alcohol distribution establishment was inconsistent with the documentary evidence. Confronted with these improbabilities, "[Translation] the applicant denies the documentary evidence, speaks of illegality, corruption and system and unabashedly states that the sale of alcohol is permitted there without restriction."
[11] The RD concluded that the applicant had forfeited his claim on the basis of the documentary evidence supplied by him at the hearing. In the first place, the RD rejected the first summons of September 19, since it did not correspond to any of the events that the applicant had related in his PIF. Then the RD rejected the investigation result notice of September 21, since "[Translation] if the first allegation has no relationship to the story told by the applicant, the date of the notice indicated in the second allegation is subsequent to the document issued to the applicant, a fact that is highly improbable." The RD also rejected the third document, since it still carried the detachable portion, although the applicant claimed in his PIF that he had reported to the police in reply to this summons. Similarly, the RD rejected the final summons since it had been issued on October 31, while the applicant had stated that its delivery occurred on November 2. The RD did not believe that the applicant was being sought. The fact that the applicant had crossed his country's border without difficulty was inconsistent with the documentary evidence reporting that security in Algeria's airports is handled through a computer system. The RD did not believe the applicant's explanation that a friend, a police inspector, had informed him that there was no danger in crossing the border since this precaution had not been mentioned previously.
[12] In so far as the two shops that the applicant claims to own are concerned, the RD accepted the trade register of the bakery that is still in operation. However, the RD did not recognize the specimen claimed by the applicant to be the trade register for the alcohol distribution premises that have been closed since mid-September 1999. When the RD questioned the applicant about the alcohol distribution trade, "[Translation] the applicant, taciturn, mumbles, changes tack, leads us astray, testifies about his bakery and ends up saying that he does not keep books, does not bill, pays no taxes and is not taxed; provides an inordinate sales figure, intercepts the panel, flounders and is effusive in his explanations, speaks of U.S. dollars, thinks in centimes and ends up in dinars." Because of this and other improbable replies in relation to the evidence, the RD rejected the alcohol business registry, did not believe that the applicant had been a distributor of alcoholic beverages and, accordingly, disbelieved his story.
[13] The applicant submits that the RD erred in fact and in law in dismissing his claim and that it based its decision on non-juridical, arbitrary and discriminatory considerations devoid of any foundation and unwarranted by the facts. In challenging the accuracy of his testimony and rejecting the exhibits introduced in evidence, the RD rendered a subjective decision completely lacking in logic.
[14] The applicant argues that the RD erred in ruling that the dates of the documents supplied by the applicant did not correspond to the dates indicated in the PIF. The applicant submits that the dates indicated in the PIF correspond to his statements. As to the exhibit dated September 21, the applicant submits that the date of October 11, 1999 written on the document, the date of the request from the Department of the Interior, is a typing mistake. The date should have read September 11, 1999 and not October 11, 1999.
[15] The applicant further submits that "[Translation] the decision demonstrates a lack of seriousness, prejudice, a superficial knowledge if not a flagrant lack of knowledge of the Algerian situation (D-6 to D-9) and a lack of objectivity, of subtlety, not to mention discernment and judgment that puts a question mark around its very capacity to assess an obvious and commonly acknowledged situation objectively and impartially, as is apparent on the very face of the reasons they give for their decision."
[16] The applicant claims that the RD ignored the serious dangers and risks to his life and security should he have to go back to his country. It remained heedless of the documentary evidence from the IRB's Documentation Centre concerning life in Algeria. It drew some unreasonable inferences from tourist guides.
[17] The applicant argues that the RD did not assess the components of the objective [sic] fear, which, in his view, are sufficient grounds in themselves.
[18] The applicant submits as well that the RD failed to apply the appropriate test for assessing the applicant's commercial activities and the situation that resulted for him from these activities.
[19] The respondent alleges that the RD decision results from a full examination of the evidence, which reveals the improbability of the applicant's story. The applicant's claim that "[Translation] the panel members decided in advance not to believe the applicant" is not validly supported and does not take into account the contradictions and inconsistencies noted by the RD.
[20] The respondent submits that the RD decision rests on the inconsistency in the applicant's testimony, which is that the Algerian authorities released him on condition that he reopen his alcohol trade although the documentary evidence indicates instead that Algeria is not a secular state and that its laws are based on the Muslim religion, which prohibits the sale of alcoholic beverages. The panel relies not only on its specialized knowledge but also on exhibit A-9. In support of this conclusion, the respondent also argues that it fell to the RD to assess both the oral and documentary evidence and to assign it the appropriate probative value.
[21] The respondent argues that the applicant fails to show how the RD erred in finding that the "[Translation] summons from the interior ministry" of September 19, 1999 is unrelated to any event referred to in the PIF. In the PIF the applicant refers to a police summons he allegedly received on September 21, 1999, but does not mention the summons of September 19.
[22] In regard to the investigation result notice of September 21, 1999, the respondent "notes" the applicant's admission that this document contains an anachronism. The respondent argues that this could not possibly be a simple typing error confusing October 11 with September 11. The document refers specifically to Monday, October 11, 1999, which is indeed a Monday, while September 11, 1999 is a Saturday. The respondent further submits that the applicant's submissions do not explain the inconsistency in exhibit D-5, which is signed September 21, 1999 but refers to October 11, 1999.
[23] In regard to the contradiction cited by the panel concerning the summons dated October 13, 1999, it is not unreasonable for the RD not to assign any probative force to this document since it still bears its detachable portion. It was not unreasonable to draw attention to these inconsistencies between the applicant's statements and the rest of the evidence that was introduced.
[24] In regard to the fourth document, the respondent submits that it is not unreasonable for the RD to note the resulting inconsistency between the applicant's testimony and the summons of October 31, 1999. He testified that this summons had been issued on November 2, 1999, while it appears from the document that it was issued on October 31, 1999.
[25] The respondent submits that the applicant does not demonstrate how it was unreasonable for the RD to find an inconsistency in the fact that he could leave his country without difficulty when he was being sought and airport security was computerized.
[26] The respondent argues that it was not unreasonable for the RD to assign no probative value to the second trade register filed by the applicant, given the inconsistency in the testimony as to his business distributing alcoholic beverages. For example, the respondent draws attention to the fact that the RD noted "[Translation] that the applicant was taciturn, mumbles, changes tack, strays from the topic, testifies about his bakery but especially ends up saying that he does not keep books, does not bill, pays no taxes and is not subject to any tax on his business". It is especially surprising that the applicant did not remember the corporate name of his business. The respondent further claims that in view of the documentary evidence that Algeria is not a secular state and its laws are based on the Muslim religion, which forbids the sale of alcoholic beverages, it was not at all unreasonable for the RD to conclude that the applicant's story was improbable.
[27] Finally, the respondent submits that the applicant had to establish a credible relationship between his account and the situation as it exists in his country. It is not enough to cite the documentary evidence relating certain living conditions or to give one's opinion on the merit of one's claim. The onus is on the applicant to demonstrate a credible relationship between the objective facts and his fear.
[28] Did the Refugee Division err in its assessment of the evidence?
[29] In my opinion the Refugee Division's conclusions in relation to the documentary evidence in the case at bar are unreasonable. And these erroneous conclusions completely invalidate the RD's decision.
[30] The RD finds that the initial summons, dated September 19, 1999, does not correspond to any of the events that the applicant relates in his PIF. In my opinion, this conclusion is not supported by the evidence. The applicant, in his PIF and at the hearing, testified that on September 8, 1999 the GIA ordered him to shut down his shop and threatened him. Furthermore, the applicant alleges that in the following week, around September 15, 1999, four individuals attacked him and fled with the day's receipts. It was in the wake of these events that the applicant filed a complaint with the police. In my opinion, the dates correspond and it seems logical to me that the first summons would be in response to these incidents.
[31] The RD concludes that if the initial allegation has no relationship to the story told by the applicant, the date of the notice in the second document is subsequent to the document issued to the applicant, and this is highly improbable. The second document is a confirmation of notification process. The document is dated September 21, 1999. In the text of the document, the signatory refers to October 11, 1999 and a decision issued on September 15, 1999. As the parties argued, the October 11, 1999 date is an anachronism. I do not accept the applicant's explanation that this error is a simple typing error. However, the record before the Court contains only the translation of this document. The original in Arabic is not part of the official record. So it is impossible for us to verify the original in order to satisfy ourselves that this was not an error in translation or to determine whether there are other plausible explanations. Having said that, the other dates appear, in my opinion, to correspond to the events as related by the applicant.
[32] In regard to the summonses dated October 13, 1999 and October 31, 1999, the RD assigned no probative value to these documents since the October 13, 1999 summons still bears its detachable portion and the applicant claims that the October 31, 1999 summons was issued on November 2. From the evidence that was filed, all of the summonses still bear the detachable portion, so it is hard for me to see how the RD could reasonably dismiss this document in particular solely because the detachable portion was not taken by the authorities. The final summons was indeed issued on October 31, 1999. However, contrary to what the RD states, the applicant testified that he received the summons on November 2, 1999. This, in my opinion, is logical given that there might have been a delay between the issuance of a document and the receipt of a document. A reading of the PIF and the transcript clearly shows that there is a two-day delay between the date of issue of the summonses and the date on which the applicant claims to have received the summonses.
[33] An outline of the key dates in the claim shows that the applicant's story is plausible. With the exception of the anachronism in regard to the second summons, the events and dates indicated on the documents correspond and are in chronological order.
September 9, 1999 GIA orders closure of business.
September 15, 1999 Four individuals attack the applicant.
The applicant closes the business and complains to police.
September 21, 1999 The applicant receives a summons dated September 19, 1999 (#4366166).
September 21, 1999 Confirmation of notification process.
Refers to a decision of September 15, 1999 and to Monday, October 11, 1999
October 15, 1999 The applicant receives a second summons dated October 13, 1999 (#4363830).
November 2, 1999 The applicant receives a third summons dated October 13, 1999 (#4366065).
[34] The RD also found against the applicant in connection with the trade register for the alcohol distribution premises and did not believe that the applicant was a distributor of alcoholic beverages.
[35] I am of the opinion that the RD erred concerning the trade register. With the exception of the information peculiar to the business, the format of both registers is identical and the registers bear the same stamp. In my opinion, the RD should have either rejected both registers or accepted both. There is no basis in the record for rejecting only one, and to do so is illogical. It was unreasonable for the RD to exclude only one register, even if it was applying its specialized knowledge.
[36] From my reading of the decision, it is obvious that the conclusions in regard to the documentary evidence are directly related to the negative conclusion as to the applicant's credibility. In my opinion, if the RD had correctly assessed the documentary evidence, it might have reached a different conclusion as to the credibility and plausibility of the applicant's claim.
[37] For the foregoing reasons, I am of the opinion that the intervention of this Court is justified, and the application for judicial review is allowed.
J.
OTTAWA, Ontario
November 28, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-2124-00
STYLE: MOKHTAR BOUCHEMA
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: NOVEMBER 9, 2000
REASONS FOR ORDER OF ROULEAU J.
DATED: NOVEMBER 28, 2000
APPEARANCES:
EVELINE FISET FOR THE APPLICANT
MICHEL SYNNOTT FOR THE RESPONDENT
SOLICITORS OF RECORD:
EVELINE FISET FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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