Kammoun v. Canada (Minister of Citizenship and Immigration), 2002 FCT 217

                                                                                                                                          Date:    20020226

                                                                                                                  Court File No.: IMM-6559-00

                                                                                                               Neutral Citation: 2002 FCT 217

Ottawa, Ontario, this 26^th day of February, 2002

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                             MUSTAFA KAMMOUN

                                                                 DIANA KHAFJAH

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

NATURE OF PROCEEDINGS

[1]                 This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), dated November 27, 2000, which held that the applicants were not Convention Refugees.

FACTS

[2]                 The applicants, Mustafa Kammoun and his wife Diana Khafajah, are both citizens of Lebanon. They claimed refugee status upon their arrival in Canada on October 10, 1999. The claim was founded upon a well-founded fear of persecution in Lebanon based on political opinion in the case of the male applicant and membership in a particular social group (the family), in the case of his wife, the female applicant.

[3]                 Mustafa is originally from the village of Jbaa, located in the south of Lebanon. Since this village is outside the security zone in May of 1997, the male applicant was compelled to find work in Beyrouth because of the state of unrest and bombings in Southern Lebanon. He continued to live in Jbaa, while working in Beyrouth. He became friends with his employer, Akif Wehbé. Mr. Wehbé would often visit him in Jbaa on weekends.

[4]                 In early September 1998, the male applicant and Mr. Wehbé were detained, interrogated, severely beaten and tortured for a week by the Hezbollah who accused them of spying on behalf of Israel. The applicant claims he was released a week later since his captors had no evidence on him. The applicant also states that Mr. Wehbé was not released since the Hezbollah were convinced that he was a spy.

[5]                 On July 21, 1999, while visiting Beyrouth, the male applicant was again apprehended by the Hezbollah who accused him of supplying Mr. Wehbé with information concerning the Hezbollah's operations. After being detained for ten days, he states that he passed out because of the ill treatment he had to endure while in detention and was taken to a hospital. Four days later, he was able to escape from the hospital with the help of a nurse, a friend of his wife.

[6]                 After his escape, the male applicant stayed with his uncle for two months before leaving Lebanon with his wife on October 9, 1999. They took a plane from Damas, via France before arriving in Canada the next day.

CRDD'S DECISION

[7]                 In concluding that the applicants were not Convention refugees, the panel stated:

Après une analyse approfondie de toute la preuve présentée, tant testimoniale que documentaire, le tribunal est d'avis que les demandeurs ne se sont pas déchargés du fardeau de démontrer qu'ils ont une crainte raisonnable de persécution au Liban en raison des motifs allégués. Le tribunal en est venu à cette conclusion en raison des invraisemblances et des divergences majeures relevées au cours de l'audience et qui sont restées sans explications satisfaisantes.

...

Le tribunal a, par ailleurs, relevé de sérieuses contradictions entre, d'une part, les notes au point d'entrée signées par les demandeurs et d'autre part, le FRP et le témoignage oral du demandeur principal :

...

Les éléments de preuve présentés sont insuffisants pour permettre au tribunal d'établir que les demandeurs, en cas de retour au Liban, auraient une possibilité sérieuse de persécution, selon les termes de l'arrêt Adjei.

Par conséquent, le tribunal conclut que les demandeurs, monsieur Mustafa KAMMOUN et madame Diana KHAFAJAH, ne sont pas des « réfugiés au sens de la Convention » , tel que défini à l'article 2(1) de la Loi sur l'immigration."

ISSUES

           1.         Did the Board err in relying on the port of entry notes as no interpreter was present at that time to assist the applicants?

           2.         Did the CRDD err in making negative findings of plausibility and credibility?

STANDARD OF REVIEW

[8]                 In Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300, p. 2 at paragraph 5, Mr. Justice Pelletier of this Court stated:

The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4^th) 193.

Given the specialized nature of the CRDD, I accept this as a general statement of the applicable standard of review by this Court of decisions of the CRDD.

ANALYSIS

[9]                 The applicants claim that the CRDD erred in taking the port of entry notes into consideration since there was no translator present during the interview. As a result of the inconsistencies between these notes and the applicants' testimony, the CRDD made negative plausibility and credibility findings. Furthermore, the applicants contend that they simply signed the port of entry notes without reading them and were therefore unaware of their detailed content. The applicants argue that the port of entry notes should not have been considered by the CRDD.

[10]            The respondent states the applicants cannot blame anyone but themselves for choosing to sign a document without reading it first. The respondent states that the applicants are ill-placed to suggest that the CRDD's decision should be quashed because it relied on evidence not translated to them, namely the port of entry notes when their own affidavit in this application was also not translated for them. The respondent contends that the negative findings of credibility and plausibility were within the CRDD's jurisdiction and were reasonable.

[11]            Questions of credibility are questions of fact. It was determined in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, pp. 316-317 at paragraph 4, Décary J.A., that these questions are within the CRDD's jurisdiction and only to be disturbed if patently unreasonable:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.

[12]            On the first issue, the applicant appears to plead lack of understanding and the need of a translator when this is convenient or helpful to his case, in particular, with regards to certain aspects of his port of entry notes which reflect a serious contraction with his oral testimony. Yet, the other parts of the port of entry notes are apparently without error.

[13]            I am of the view that the CRDD reasonably concluded not to give weight to the respondent's explanation. As a result of such a finding, the CRDD was reasonable in drawing the negative inferences it did draw with respect to the inconsistencies and contradictions found in the port of entry notes and the personal information form (PIF) and oral testimony of the male applicant.

[14]            I am also of the view that the plausibility and credibility findings of the CRDD made with regards to the male applicant's detention a year after his release, his passing out in custody, his removal to a hospital, and his escape therefrom were all reasonably open to the Board on the evidence before it.

[15]            I am satisfied, having heard the parties and having read and considered all of the documentation, that the applicants have not shown the findings of the Board to be patently unreasonable so as to warrant the intervention of this Court.

[16]            I am also of the same view with respect to the CRDD's finding that the male applicant's behaviour did not reflect that of someone who fears for his life, considering that he stayed in Lebanon for 2 months after his escape, then travelled to Syria before coming to Canada. This finding was reasonably open to the CRDD.

[17]            I am satisfied that the applicants have not made a case that would warrant the Court's intervention.

CONCLUSION

[18]            For the above reasons, this application for judicial review will be dismissed.

           Certification of a question of general importance

[19]            The applicants submit the following two questions for my consideration which they allege are both serious and of general importance:

1.         What is the obligation of an immigration officer at a Canadian Port of Entry when dealing with a Refugee Claimant who is unable to communicate in either the English or the French languages? Is there an obligation/duty to provide such a Claimant with a translator?

2.          Is it an error for the Board to rely on a Port of Entry statement made by a Refugee Claimant upon his arrival in Canada when the evidence demonstrates that at the time the said statement was given the Claimant had a limited knowledge of the language used? Is it an error for the Board to impugn a Claimant's credibility on the basis of inconsistencies contained in a statement taken under these circumstances?

[20]            I note that the applicants did not object to the introduction of the impugned evidence at the hearing before the CRDD. As indicated in the above reasons, on the evidence I do not find unreasonable the CRDD's conclusion with respect to its treatment of the port of entry notes. It was open for the panel to take into account the existence and content of the port of entry notes and to determine the probative weight to give such evidence. Given the absence of an objection to the introduction of the port of entry notes at the hearing, the file is void of any factual background to allow the CRDD or a Court on judicial review to fully consider the question.

[21]            I therefore make the following two observations with regards to the proposed questions. First, the obligation of the immigration officer was never raised or put in issue before the CRDD. Second, in any event, I am satisfied that the evidence does not support the underlying assumption upon which the second question is based, namely that the claimant had a limited knowledge of the language used.

[22]            It is accepted law that the certification process is an exception to the general rule that decisions of the Trial Division on such applications for judicial review of decisions under the Immigration Act are not subject to appeal. Certification is restricted to circumstances where a specific question is proposed, that is both serious and of general importance and that will be determinative of the appeal.

[23]            On the circumstances of this case, I am satisfied that the tribunal's decision does not raise an issue of procedural fairness. There being no issue of procedural fairness raised by the tribunal's decision, I am of the view that the certification process under subsection 83(1) of the Act does not contemplate a circumstance where the Court of Appeal is asked to adjudicate an issue that was not raised or even argued before a tribunal.

[24]            I conclude, after reviewing the written submissions of both parties on the proposed certified questions by the applicants, that the questions are not serious and of general importance and that will be determinative of the appeal as contemplated by subsection 83(1) of the Immigration Act.

[25]            For these reasons, I do not propose to certify a question.

                                                                            ORDER

THIS COURT ORDERS that:

1.         The application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated November 27, 2000 is dismissed.

                                                                                                                               "Edmond P. Blanchard"           

                                                                                                                                                               Judge