Date: 20021030
Docket: IMM-5536-01
Neutral citation: 2002 FCT 1124
Ottawa, Ontario, Wednesday, the 30th day of October, 2002
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
EMAD DAWOOD YELDA
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an applicationfor judicial review of the decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board, dated November 1, 2001, wherein the applicantwas found not to be a Convention refugee.
[2] The applicant is a 29-year-old citizen of Iraq. He claims refugee status on the basis of his religion as a Christian, his ethnicity as a Chaldean and his political opinion. The CRDD panel concluded there was insufficient credible or trustworthy evidence on which to determine that the claimant has a well-founded fear of persecution based on any Convention grounds. The applicant submits the CRDD erred in law in two respects. First, by finding there was no nexus between the applicant's claim and the grounds set out in the definition. And second, by finding he did not have a well-founded fear of persecution.
[3] The issues raised by the applicant involve the application of the definition of Convention refugee. As this is an issue of mixed fact and law, the correct standard of review to be applied to is reasonableness simpliciter, or "clearly wrong," as set out in Cihal v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 577 (F.C.A.).
[4] At the hearing, the applicant was self-represented and addressed the Court through an interpreter. The applicant sought to present evidence of his persecution. This was the same evidence raised before the CRDD. The Court explained to the applicant that its role is to review the CRDD decision for errors, and not to rehear the evidence of the applicant.
[5] The CRDD did not err in finding the applicant's fear had no nexus to any of the Convention grounds. The documentary evidence demonstrates that Christians and Chaldeans are not targets for persecution by the Iraqi government. In his testimony, the applicant stated that he was unaware of any significant instances of violence, discrimination or harassment against Christians or Chaldeans in Iraq in the previous two years. He also acknowledged that the Iraqi government allowed Christians to worship freely.
[6] The applicant also claimed fear of persecution on the basis of political opinion. Although he had no party affiliation or interest in politics, the applicant claims he is wanted by the Iraqi secret police because a member of the communist party confessed against him. The applicant's lack of affiliation with the communist party is not a bar to his claim. Jurisprudence on this point indicates that the political opinion ascribed to a refugee claimant for which he or she fears persecution need not necessarily conform to the claimant's true beliefs (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). However, the CRDD did not find the applicant's claim that he is wanted by the secret police credible due to inconsistencies in his evidence. The CRDD, with its specialized knowledge and direct access to viva voce testimony, is in the best position to assess the credibility of applicants. Accordingly, the standard of review when dealing with findings of credibility by the CRDD is patent unreasonableness (see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.)).The Court finds the CRDD's conclusion was a reasonable one and did not err in finding the applicant was not persecuted on the basis of political opinion.
[7] The Court is of the opinion the CRDD came to a reasonable conclusion in finding the applicant was a target of extortion because of his family's wealth. It is established in the jurisprudence that victims of extortion do not meet the test set out inWard, supra., to be considered a "particular social group" under the Convention. For a review of this jurisprudence, see the decision of Reed J. in Valderrama v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 135 (T.D.). The CRDD did not misconstrue the definition of a Convention refugee in finding the applicant did not fit into the parameters of the definition.
[8] The CRDD came to a reasonable conclusion when it stated the applicant's fear was not well-founded. An applicant's claim of a well-founded fear must be evaluated both subjectively and objectively (see Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 (F.C.A.)). The Court finds it was reasonable for the CRDD to draw the conclusion that the applicant lacked a well-founded fear of persecution, both on a subjective and objective basis. There is a sufficient evidentiary basis to support the CRDD's decision. As the CRDD noted, the applicant remained in Iraq for five years after the alleged harassment began. He also acknowledged he was free to practice his faith and was not persecuted by the Iraqi government for his religion or ethnicity. Finally, his claim of being wanted by the secret police was found to be not credible.
[9] The applicant requested the Court consider the certification of the following question of general importance or general application:
"Did the Refugee Division err in law by failing to take into consideration the broader context within which the extortion had taken place?
that is extortion was carried on by member of the Security Forces which is an arm of the government and was motivated by political and religious reasons." (sic).
The respondent opposed certification because the test for certification is not met. First, the respondent submits that the proposed question would not be determinative of any appeal. Second, the respondent submits that the question asked is specific to the facts of this case and is not a question of general importance. The Court finds that this question relates to a finding of fact specific to this case, and is not a serious question of general importance such that it can be certified under subsection 83(1) of the Immigration Act.
ORDER
THIS COURT HEREBY ORDERS THAT:
For these reasons this application for judicial review is denied. No question is certified for appeal.
_(Signed) Michael A. Kelen _______________________
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5536-01
STYLE OF CAUSE: EMAD DAWOOD YELDA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, OCTOBER 22, 2002
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: WEDNESDAY, OCTOBER 30, 2002
APPEARANCES BY: Mr. Emad Dawood Yelda and Mr.Abbas Dhaidan
(Interpreter)
For the Applicant
Ms. Pamala Larmondim
For the Respondent
SOLICITORS OF RECORD: Mr. Emad Dawood Yelda
82 John Lindsay Court
Downsview,Ont.
M3L-2K1
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
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