Date: 20000713
Docket: IMM-2770-99
Ottawa, Ontario, July 13, 2000
Between:
IBRAHIM SAAD
Plaintiff
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
The application for judicial review is allowed. The decision of the Refugee Division of the Immigration and Refugee Board on April 30, 1999 is accordingly quashed. The matter is referred back to a panel of different members for re-hearing.
Marc Nadon
Judge
Certified true translation
Martine Brunet, LL. B.
Date: 20000713
Docket: IMM-2770-99
Between:
IBRAHIM SAAD
Plaintiff
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
NADON J.
[1] The plaintiff is challenging a decision of the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") on April 30, 1999, which held that the plaintiff is not a Convention refugee.
[2] The plaintiff, born in 1967, is a citizen of Djibouti. He fears persecution if he has to return to his country on account of his political opinions and membership in the social group of journalists.
[3] First, the Refugee Division concluded that the evidence submitted by the plaintiff was credible. At p. 2 of its decision, the Refugee Division said the following:
[TRANSLATION]
| In the tribunal's opinion the evidence submitted by the claimant regarding his experiences in Djibouti is credible. We had to determine, based on the claimant's experiences and the documentary evidence before us, whether there is a reasonable possibility that the claimant would be persecuted if he returned to his country. |
[4] Based on the evidence submitted by the plaintiff, the Refugee Division, in view of its finding of credibility, accepted the following points in the evidence:
| 1. in July 1993, the plaintiff was struck on the knee by a police officer because of remarks of a political nature that he made in a restaurant; |
| 2. in February 1998 the plaintiff was arrested and received an offer to work for the party in power: he refused the offer of work and was at once tortured; after 20 days' detention, he was released unconditionally; |
| 3. in July 1998, the plaintiff lost his employment with Djibouti broadcasting and television ("DBT"), the national broadcaster, because he said he agreed to [TRANSLATION] "produce a high-quality advertisement" for the National Democratic Party ("NDP"), one of the opposition parties. |
[5] The Refugee Division discussed these various points of evidence, which it found credible, as follows. At pp. 2-3 of its decision, it disposed of the incident in which the plaintiff suffered an injury to his knee in the following terms:
[TRANSLATION]
| He left for Tunisia to seek attention for an injury inflicted on him before he was a member of the NDP, and this incident in fact appears to be an isolated one. It was an accident that the security officer heard the critical remarks made by the claimant about the regime. He made them in a restaurant, in a country where he says everyone talks politics. When challenged about his remarks, he replied that he would say whatever he liked, which resulted in his being hit by a police officer that a security officer had gone to find. The claimant provided no evidence to suggest that his identity was known to the security officer or his police colleagues. The claimant kept his employment after the incident. He worked for the broadcasting system, a politically sensitive organization. We therefore conclude that the authorities had no ongoing interest in the claimant resulting from the July 1993 incident. |
[6] As to his arrest and term in prison in February 1998 and his release in July 1998, the Refugee Division dealt with these events as follows at pp. 3-4 of its decision:
[TRANSLATION]
| The claimant indicated in his testimony that he limited his contact with the NDP when he returned to Djibouti in February 1997. He mentioned no problem with the authorities from February 1997 to February 1998. It was only after his father, also an NDP member, was detained after a meeting held in the party headquarters in early February 1998 that the claimant was arrested a few days later. It was not until after he had refused the offer made to him to work for the party in power, an offer accompanied by promises of advancement and material benefits, that the seesaw was used on the claimant. This punishment appeared to be directly related to the claimant's refusal. He did not suffer any other mistreatment. He was given therapeutic treatment by massage so that no trace of torture remained when he was released. It is understandable for the government to try and conceal the fact that it resorted to torture, but for it to offer therapeutic treatment to a torture victim is quite new to this tribunal, which has heard a great many claims against the Djibouti government, including claims in which the claimants alleged they had suffered mistreatment during their detention. The fact that the claimant was not mistreated after the torture was inflicted and after his therapeutic treatment by massage suggests that the government had no intention of systematically persecuting the claimant. This conclusion is further based on the fact that the claimant was released unconditionally and was authorized to resume his work with DBT. In view of the fact that a great many Djiboutians were dismissed from government employment simply because they were not Mamasans, in view of the large number of employees dismissed because of their membership in opposition parties and the fact that such persons were turned out with impunity, the fact that the claimant could simply go back to his work in an organization regarded as politically sensitive appears to indicate that the claimant was not regarded by the existing regime as a threat. The claimant explained that he was not dismissed because the RTC [sic] needed his specialized knowledge. This explanation does not seem relevant to us. The RTC [sic] continued to operate while the claimant was in Tunisia for two and a half years. The operation of the DBT did not depend on his being there. Furthermore, by his own admission he had colleagues who had received training in Japan with him and who possessed at least some of his skills, so they could perform the necessary work. Further, new employees could be hired and trained. In fact, the government could have done this at any time, if it intended to dismiss the claimant. It would appear that it had no such intention, except during the claimant's last months in the organization. |
[7] The plaintiff submitted that under the applicable test the question is whether in the case at bar there would be a reasonable fear of persecution if the plaintiff had to return to his country. Consequently, the plaintiff submitted that the Refugee Division made an error by using the wrong test, namely that of systematic persecution. In my opinion, this error explains why the Refugee Division, having concluded that the story related by the claimant was credible, was able to say that the torture inflicted on him did not constitute persecution within the meaning of the Convention. I again cite the relevant passage:
[TRANSLATION]
| The fact that the claimant was not mistreated after the torture was inflicted and after his therapeutic treatment by massage suggests that the government had no intention of systematically persecuting the claimant. |
[8] Further, the Refugee Division appears to have focussed on the government's intention rather than on the actions taken by the government. In other words, if the government tortures an individual but apparently does not intend to systematically persecute him, the torture does not constitute persecution within the meaning of the Convention.
[9] In my opinion, there can be no doubt that the Refugee Division made an error which vitiates its decision. Consequently, the decision by the Refugee Division on April 30, 1999 will be quashed and the matter referred back to the Refugee Division for re-hearing before a panel of different members.
[10] Before concluding, I would like to add a few words. In reading the Refugee Division's decision I had the impression that, despite its finding of credibility, the tribunal had serious doubts about the credibility of certain aspects of the story related by the plaintiff. In particular, this seems to be clear when one reads the passages of the decision regarding the torture inflicted on the plaintiff followed by the therapeutic massage. The Division took occasion to express its astonishment at the therapeutic massage, which in its opinion is not usual in Djibouti. According to the Refugee Division, offering an individual who has just been tortured therapeutic treatment [TRANSLATION] ". . . is quite new to this tribunal, which has heard a great many claims against the Djibouti government, including claims in which the claimants alleged they had suffered mistreatment during their detention". If the Division did not believe the plaintiff it had only to say so, but having found him credible it had no choice but to be consistent with that finding.
[11] For these reasons, the application for judicial review will be allowed.
O T T A W A, Ontario
July 13, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: IBRAHIM SAAD |
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: MARCH 30, 2000
REASONS FOR ORDER BY: NADON J.
DATED: JULY 13, 2000
APPEARANCES:
| LUCIANO MASCARO FOR THE APPLICANT |
| JOSÉE PAQUIN FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| ARPIN, MASCARO & ASSOCIÉS FOR THE APPLICANT |
Montréal, Quebec
| Morris Rosenberg FOR THE RESPONDENT |
Deputy Attorney General of Canada
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