Date: 20000707
Docket: IMM-4040-99
Ottawa, Ontario, July7, 2000
Before: Pinard J.
Between:
LYES ACHOUR,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Defendant.
ORDER
The application for judicial review of the decision by the Refugee Division of the Immigration and Refugee Board on August 5, 1999 that the plaintiff is not a Convention refugee is dismissed.
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20000707
Docket: IMM-4040-99
Between:
LYES ACHOUR,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision by the Refugee Division ("the tribunal") on August 5, 1999 that the plaintiff is not a Convention refugee as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The tribunal did not believe that the plaintiff was afraid of doing his military service in Algeria because his [TRANSLATION] "actions indicated a complete lack of deference following the order of summons received in October 1998". Further, the plaintiff filed no documents issued by the military authorities.
[3] The tribunal made the following conclusion regarding the conscientious objection:
[TRANSLATION]
| The claimant did not establish that he would be liable for the offence committed to a penalty of disproportionate severity on account of his race, religion, nationality, membership in a particular social group or political opinions. The claimant here is concerned with legislation of general application by which all Algerian citizens of the male sex must perform their military service within a given period. |
| Further, the plaintiff could be exempted, as we mentioned above, because of his special position in the family: the conscription legislation does not intrinsically constitute persecution. The precedents on this point are that there is no persecution when the penalties imposed for refusal to do military service are not severe. Consequently, the claimant did not establish that the penalty that might be imposed was disproportionate because of his non-compliance. [References omitted.] |
[4] The question here, therefore, is whether the tribunal was wrong to conclude that the plaintiff's objection to military service could not be used as a basis for his refugee status claim.
[5] First, in his written memorandum the plaintiff did not dispute the tribunal's finding that his testimony was not credible regarding the call-up order received by his family in October 1998. That should suffice to dismiss the application for judicial review. It is well settled that where credibility is concerned it is not this Court's function to substitute its own opinion for that of the Refugee Division, a specialized tribunal, where as here the plaintiff has failed to show that the decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it (see s. 18.1(4) of the Federal Court Act).
[6] Further, I find that there is no merit in the plaintiff's argument that the tribunal acted unreasonably in requiring that documentary evidence be produced. The plaintiff testified that his mother had received his call-up order. He also testified that his mother had sent him this document, but that he had not yet received it because he had changed his address several times. In my view, the inference drawn by the tribunal that the plaintiff was not credible because inter alia he had not supplied his call-up order was reasonable.
[7] Finally, regarding the conscientious objection itself, the tribunal seems to the Court to have properly applied the test defined by the Federal Court of Appeal in Zolfagharkhani v. Canada (M.E.I.), [1993] 3 F.C. 540. In the case at bar, the legislation of general application challenged by the plaintiff, citing his political opinions and membership in a particular social group, is the Algerian legislation on military service. After reviewing the evidence, the Court is not persuaded that the tribunal's conclusions in this regard were unreasonable.
[8] For all these reasons, the Court's intervention is not justified and the application for judicial review is dismissed.
YVON PINARD JUDGE
OTTAWA, ONTARIO
July 7, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-4040-99
STYLE OF CAUSE: LYES ACHOUR
v.
MCI
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: JUNE 15, 2000
REASONS FOR ORDER BY: PINARD J.
DATED: JULY 7, 2000
APPEARANCES:
TAKIOULLAH EIDDA FOR THE APPLICANT
MARIE-NICOLE MOREAU FOR THE RESPONDENT
SOLICITORS OF RECORD:
TAKIOULLAH EIDDA FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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