Al-Khulaidy v. Canada (Minister of Citizenship and Immigration), 2002 FCT 200

                                                                                                                                            Date: 20020226

                                                                                                                  Court File No.: IMM-6590-00

                                                                                                               Neutral Citation: 2002 FCT 200

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

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                    YASSER ABDO AL-KHULAIDY

                                               NAWAL MOHAMED AL-SHIRMANY

                                                              MAHA AL-KHULAIDY

                                                            SHIHAB AL-KHULAIDY

                                                                                                                                                      Applicants

                                                                              - and -

                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 The applicants, a young family from Yemen, are seeking judicial review of a negative decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD) dated November 30, 2000.

[2]                 The male applicant, is a medical doctor and former soccer star. His wife, the female applicant, is a school teacher. The couple has two minor children. The family lived a comfortable middle class life in the city of Sana'a. The male applicant's mother and four siblings also lived in Sana'a, while his other siblings lived in Hodeidah, Yemen and Jeddah, Saudi Arabia. The female applicant's family all lived in Sana'a.

[3]                 The male applicant with other friends regularly assembled after lunch on Thursdays and Fridays to "chew" a certain plant and talk. On July 1, 1999, the male applicant was at his friend and colleague, Mohamad's house, along with two other friends for such a gathering when four men from Political Security arrested them and took them away.

[4]                 The male applicant was separated from the others, put into a cell and questioned. He was told by his captors that they knew that he and his friends were with the Socialist Party and Mog. The male applicant was slapped and beaten on the soles of his feet and asked to confess that he was an active member of Mog and the Socialist Party. The questioning continued for two weeks and suddenly decreased. On Friday July 16, 1999, the male applicant was allowed to attend Friday prayers where he met Abdullah, an officer who knew him when he was a soccer star.

[5]                 Abdullah agreed to help and a week later advised that the only way out was to escape. Arrangements were made and with Abdullah's help, the male applicant escaped and together with his family made his way to Canada via Djibouti and the United States. The applicants reached Djibouti on July 31, 1999 and left on August 21 arriving in New York, via Paris, on the same day. The applicants stayed in Philadelphia for five (5) days before travelling to Canada where they claimed refugee status.

[6]                 The male applicant's claim is based on his perceived political opinion. His wife and children rely on his evidence and base their claims on their membership in a particular social group, his family.

[7]                 The CRDD found issue with the applicants' credibility, their failure to claim in the United States and the well-foundness of their claim. The applicants were found to be "not fully" credible witnesses and much of their testimony was found to be implausible. The CRDD found that their fear of persecution was unfounded and inconsistent with the documentary evidence adduced at the hearing. The CRDD concluded that, since their fear of persecution had no objective basis, the applicants were not convention refugees.

[8]                 The applicant raises the following issues:

           (a)        Did the Refugee Division err in law in its interpretation and application of the definition of the Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2?

           (b)        Did the Refugee Division base its decision or order on an erroneous finding of fact or facts that it made in a perverse or capricious manner or without regards for the material before it?

           (c)        Did the Refugee Division base its decision or order on findings of plausibility based on inferences that were not reasonably open to it?

[9]                 In concluding that the applicants would not face a serious possibility of persecution for a Convention ground should they return to Yemen, the CRDD made the following finding at page 9 of its decision:

                                 ...The panel finds that the male claimant was picked up erroneously on July 1^st, 1999; that the authorities have nothing on him, since he had never done anything against them, and had, in fact, greatly lessened their initial mistreatment of him by the time he escaped. His escape seems to have gone unremarked, and there is no evidence to show he remains a subject of interest to them in any way.

[10]            The applicants argue that the CRDD's finding that the male applicant's arrest was a mistake, was based on an inference that was not reasonably open to it on the evidence. The applicants argue that simply because they had no knowledge of the authorities in Yemen making overt of physical efforts to locate him, does not mean that he is not wanted or at risk. The principle applicant further argues that his mistreatment in prison had not greatly lessened by the time of his escape as the CRDD asserted. The applicants position is that although the frequency of the torture and interrogation decreased, this does not imply that the applicant mistreatment had greatly lessened to infer a lack of interest in the applicant or that he had been erroneously imprisoned. The applicants submit that the CRDD accepted the testimony of the arrest and the escape, and that this is the evidence upon which the CRDD must make its determination.

[11]            The applicants also submit that the CRDD erred in imposing too high a standard of proof on the applicants, arguing that the objective test is not so stringent as to require a probability of persecution but rather, is there a reasonable chance that persecution would take place were the applicants returned to their country of origin.

[12]            On this last point raised by the applicants, I am satisfied that the CRDD applied the proper standard. At page four of its reasons, the CRDD stated:

In order for the panel to find the claimants to be Convention refugees, the evidence must establish that they have good grounds for fearing prosecution for at least one of the reasons set out in the Convention refugee definition. The standard of proof to be applied in assessing whether good grounds exist is set out in Adjei, and requires that the panel be satisfied that there is a ‘reasonable chance' or ‘serious possibility' that the claimants would be persecuted were they to return to Yemen, based on any of the grounds set out in the Convention refugee definition.

I am satisfied, upon review of the reasons of the CRDD, that the proper standard was applied.

[13]            Having accepted the applicants' testimony that they were, "...in fact, two apolitical individuals.", the CRDD also held that the applicants had not established that a perceived political opinion could be ascribed to them justifying a legitimate reason to fear persecution and ground a refugee claim. The CRDD offered several reasons to justify this conclusion.

[14]            The CRDD observed that the principal applicant's mother while visiting with her other children, did not report that the authorities had ever approached either her or the claimant's brother in Yemen, about the whereabouts of the applicants. Similarly, various family members of the applicants, had several opportunities to bring information as to whether there has been any fall out around the principal applicant's alleged escape, or the family's alleged illegal departure from Yemen. The evidence is that they had no such news or information.

[15]            When asked about any contact he may have had with his brother-in-law, Abdul Hakim, who lived with them in Yemen and had a key to his home, the principal applicant was evasive. The evidence, however, reveals that he had arranged to have his briefcase containing his personal documents delivered by his niece, Abdul Hakim's daughter, who had come to the United States.

[16]            In my view, it was open to the CRDD, given this evidence to conclude that the principal applicant's escape had gone unremarked and that he is not a subject of interest to the authorities.

[17]            The CRDD further observed that the principle applicant made no effort to learn of the fate of his friends that were arrested with him. He testified that he didn't want anything to do with it, nor did he blame his friends for what had happened. The CRDD inferred from this that the claimant either now knows that his friends are alright and is not telling the truth, or that he is simply not concerned about their fate or his own in Yemen. This is not a patently unreasonable inference.

[18]            The CRDD also noted that the female applicant, in responding to a question from the panel at the hearing as to whether she thought she would be at risk if returned, answered as follows: "I'd have to be accountable for the false passport but for political activity only he (her husband) would be accountable. Politically, I don't believe so. I believe if they had concerns about me they'd have picked me up." The CRDD reasonably concluded, in my view, that this evidence, with respect to the female applicant's fear of prosecution, undermined her claim.

[19]            I am also of the view that it was reasonably open to the panel to conclude, given the principal applicant's apolitical profile, that the authorities had nothing on him nor that he remains a subject of interest to them in any way. The CRDD, in finding that the principal applicant was picked up erroneously, relied on the Department of State (DOS) report which stated that security forces arbitrarily arrest and detain persons but that "...most such disappearances are temporary, and detainees typically are released within weeks or months." It was open to the Panel to rely on this documentation in coming to its conclusion that the principal applicant was picked up erroneously. In my view, this conclusion was reasonably open to the Panel given the apparent lack of evidence to show that the principal applicant was of any interest to the authorities in Yemen.

[20]            While I agree with the applicants that the CRDD may have mis-characterized the principal applicant's mistreatment in prison by stating it had greatly lessened, I do not believe such an error to be fatal. The undisputed evidence that the frequency of the "torture" and interrogation had decreased and the principal applicant was let out of his cell for Friday prayers, it can be said that the level of mistreatment had lessened.

[21]            The above detailed reasons led the CRDD to conclude that the applicants did not establish that they faced a reasonable possibility of persecution for a Convention ground should they return to Yemen. I am of the view that, upon considering the totality of the evidence, it was not unreasonable for the CRDD to conclude as it did.

[22]            The jurisprudence of this Court has clearly established that the CRDD "...which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony" and "gauge the credibility of an account and to draw the necessary inferences" [Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, pages 316-317, para. 4]. Only when the inferences are patently unreasonable will this Court intervene.

[23]            It is my view that the inferences drawn and the conclusions of the CRDD in this matter were supported by the evidence before the panel and reasonably open to it. I conclude that the CRDD did not base its decision on an erroneous finding of fact or facts that it made in a perverse or capricious manner or without regards for the material before it. I find no error in the decision or in the reasons of the CRDD that would warrant the intervention of this Court.

[24]            This is a case were the CRDD considered and weighed all of the elements of evidence as required by its mandate as an expert tribunal and came to a conclusion. As long as this conclusion is not wrong on its face, it is not patently unreasonable. Conkova v. Canada (Minister of Citizenship and Immigration, [2000] F.C.J. No. 300. I therefore conclude that the CRDD's decision in this matter is not wrong on its face, even though others might come to a different conclusion.

[25]            For the above reasons, the judicial review will be dismissed.

[26]            The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.

                                                                            ORDER

THIS COURT ORDERS that:

1.         This application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated November 30, 2000 is dismissed.

                                                                                                                               "Edmond P. Blanchard"             

                                                                                                                                                  Judge