Osman v. Canada (Minister of Citizenship and Immigration), 2002 FCT 654

                                                                                                                                          Date:    20020610

                                                                                                                        Docket No.: IMM-6543-00

                                                                                                               Neutral Citation: 2002 FCT 654

Ottawa, Ontario, this 10^th day of June, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                        SOULEMAN OSMAN, Waberi

                                                       SOULEMAN OSMAN, Moussa

                                                                                                                                                      Applicants

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

INTRODUCTION

• [1]                 This is an application for Judicial Review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated November 29, 2000, in which the applicants, Waberi Souleman Osman and Moussa Souleman Osman were found not to be Convention refugees as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act").

FACTS

• [2]                 The applicants, Waberi Souleman Osman, 66 years old and his son, Moussa Souleman Osman, 19, are citizens of the Republic of Djibouti. The father is the designated representative of the younger applicant whose claim is based on his father's claim. Their claim is based on a well-founded fear of persecution based on their race or nationality, their membership in the Gadaboursi minority tribe and because of their perceived political opinion as opponents of the government of Djibouti.
• [3]                 The applicants fear being harassed and humiliated by members of the Issa tribe, the predominant and ruling party in Djibouti, and of being arrested and killed by government authorities should they return to their country.

• [4]                 The CRDD noted that the minor applicant as a child, was insulted and even beaten by his Issa classmates and by his Issa teachers because of his tribal affiliation.
• [5]                 The principal applicant was a member of the French army from 1957 to 1969 and a member of the Djibouti army from 1977 to 1995, where he became a Sergent chef. Between 1969 and 1977, he was a bus driver.

• [6]                 In late 1989, at the height of the war in Somalia, when the principal applicant was stationed at the border base of Loyada, between Somalia and Djibouti, he claims to have been accused by his commander of secretly letting Somali civilians into Djibouti territory. He was ordered back to Djibouti-Ville and put under curfew for five months. During this time, the principal applicant alleges to have been humiliated, laughed at, and insulted with tribal jokes by colleagues.
• [7]                 From 1990 to 1995, the principal applicant was in charge of a small military camp. There again, he claims that he was the victim of many tribal jokes from his men, and mistreated by higher ranking officers.

• [8]                 In 1995, the principal applicant retired from the army and was then appointed one of the 18 or 20 elders of the Mahad'Ase, a sub-clan of the Gadaboursi. The principal applicant did not mention this appointment in his PIF, but raised it at his hearing.
• [9]                 The principal applicant's evidence is that every day he met with the other Gadaboursi elders to discuss the overall situation in Djibouti. He declared that he encouraged their clan to join opposition parties so that they could participate in the political, economic, and social life of the country. Meeting places for these discussions are referred to, in his testimony, as Maglis, a place where people went every day to "talk, sing and chew Khat".

• [10]            In May 1996, the principal applicant was arrested and taken to the "Villa Christophe", a detention centre, where he was detained for four months. According to the principal applicant, he was tortured, beaten and interrogated because he talked too much and because he sat and talked with the other clans about the government and its activities.

• [11]            On August 14, 1997, the applicants left their country to seek asylum in Canada, via France and the United States.
• [12]            In April 1999, the principal applicant learned that, after his departure from Djibouti, the police went to his house, interrogated his wife and arrested his two daughters and raped them. Following such incidents, his family went into exile in Ethiopia.

CRDD DECISION

• [13]            The CRDD denied the applicants' refugee claim on the grounds that the principal applicant was not credible regarding his political involvement and it also concluded that there is not a reasonable chance that he would be persecuted in Djibouti for his political opinion or political opinion attributable to him.
• [14]            The CRDD's negative credibility findings led to the following conclusions:

In conclusion, we do not believe that the principal claimant was officially elected an elder of the Mahad'Ase sub-clan, that he was suspected of being a government opponent; that, in May 1996, he was arrested; that he was tortured; that he was detained for four months; that, in September 1997, his wife was interrogated about him and that his two daughters were arrested and raped. We do believe that the principal claimant is a respected retired sergent chef, that he went day after day to the maglis, where he talked, of politics among other things however vaporously, sang and chewed khat.

• [15]            The principal applicant submitted a psychological report, dated July 20, 2000, stating that he suffers from post-traumatic stress symptoms, has trouble sleeping and still dreams of people beating him. The CRDD found that there was no credible and trustworthy evidence before it linking these post-traumatic symptoms to his political opinion, expressed or attributed.

• [16]            On the issue of persecution, the CRDD concluded that the acts of harassment and discrimination suffered by the applicants as Gadaboursis in Djibouti do not amount to persecution. In making this determination, the CRDD considered documentary evidence to assess the situation of Gadaboursis in the Djibouti society. It found that the Gadaboursis are victim of discrimination in employment in the public sector and that they tend not to be involved in Djibouti politics. Those who are involved in politics and are opposed to the government can be mistreated. The CRDD came to the conclusion that Gadaboursis experience discrimination, but are not subject to serious harm that would amount to persecution.
• [17]            The CRDD found the applicants not to have a subjective fear. This conclusion is based on the following facts; that the principal applicant waited one year after his arrest and detention to leave the country; that he could not remember when he applied for his passport; that he did not seek asylum in either France, the United States or even in a country closer to Djibouti. The principal applicant also stated to the CRDD that he wanted to come to Canada because Canada accepts refugees and treats them well. The CRDD concluded that the applicants failed to establish a subjective fear of persecution and were not Convention refugees.

ISSUES

1.         Did the CRDD err in making findings on the applicants' credibility and fear of persecution, without regard to the evidence before it?

2.         Did the CRDD draw unreasonable inferences from the evidence?

3.         Did the CRDD err in its assessment of the documentary evidence?

ANALYSIS

1.         Did the CRDD err in making findings on credibility, and on persecution, without regard to the evidence before it?

Credibility

• [18]            The CRDD noted seven findings upon which it determined the principal applicant's lack of credibility with regards to his political involvement and his subjective fear of persecution. The CRDD found that the principal applicant's account of the following incidents was fraught with implausibility or contradiction:

1.             The applicant was vague in his answers to the extent that it was not clear in the evidence before the CRDD as to when he was elected or how he was elected an elder. Moreover, the applicant failed to mention in his PIF that he was elected an elders of the Mahad'Ases.

2.             The CRDD found that the applicant's knowledge of his country's politics is somewhat rudimentary and even contradictory and that he expressed his political views, whatever they were, only in the informal context of the maglis.

3.             The applicant was not able to explain why he was personally arrested. The CRDD also found that there was no indication in the evidence before them suggesting that people involved in nebulous and confused political discussions while at the maglis, are arrested and detained.

4.             The CRDD found that, had the applicant been accused of being a political opponent, he would have known the reasons of his arrest, particularly after four months of detention.

5.             It was found implausible that a clan elder and a retired sergent chef would not try to seek the help of his peers after being arrested, tortured and detained illegally.

6.             There was some contradiction in the applicant testimony pertaining to whether or not he went back to the maglis after his arrest.

7.             There is an inconsistency and confusion on whether the applicant's family left Djibouti before him or did he just leave them money and left the country before his family did.

The applicants take issue with each of these findings.

• [19]            The principal applicant submits that the CRDD erred in finding that he is not an elder of the Mahad'Ase because he could not describe how he became an elder. It is alleged that the principal applicant fully explained the appointment, the duties and the meeting place of the sub-clan in his testimony. The principal applicant argues that the CRDD was looking for a more specific response and seemed to have made its determination on the basis of what it expected, not what was actually given to it.
• [20]            In support of this contention the applicants submit the case of Khaled Ahmed v. Canada (M.C.I.), (1999), 168 F.T.R. 230, which the applicants contend has very similar facts to the case at bar. Cullen, J. said, at para. 26:

[26] The Applicant did give an answer as to what his duties were and what it was proposed that his party would do. In my view, the Board were looking for a more specific response and seem to have made their determination on the basis of what they were expecting, not what was actually given to them. [Emphasis added]

• [21]            I do not accept the applicants' contention. In Khaled Ahmed, supra, Mr. Justice Cullen found that the CRDD had made findings without regard to the evidence and gave weak reasons for its findings. The same cannot be said in the present case. In the present case, the CRDD's reasons are detailed and supported by the evidence. The CRDD found the principal applicant to be vague and confusing in his answers at the hearing regarding this issue, a finding well within its expertise and jurisdiction as a specialized tribunal. The respondent also contends that the fact that the principal applicant failed to mention in his PIF that he was an appointed elder of the Mahad'Ase clan further justified the CRDD's negative finding. I find that, on the evidence before the CRDD, its conclusion that the principal applicant was not an elder of the Mahad'Ase clan was reasonably open to it.
• [22]            The applicants advance the same arguments with respect to the CRDD's assessment of the principal applicant's knowledge of political parties in Djibouti. The CRDD found that the principal applicant was hesitant in responding to questions on details of the opposition parties in Djibouti and was confused about the names and leaders of these parties. I am of the view that on the evidence the CRDD's findings with respect to this issue were also reasonably open to it.

• [23]            The applicants further submit that the CRDD ignored and misconstrued parts of the principal applicant's testimony regarding his arrest and detention. It is submitted that the CRDD erred in finding that he was never arrested or detained. The respondent alleges that the CRDD was reasonably attempting to determine from the circumstances why the principal applicant would be arrested. In his own evidence, the principal applicant stated that he was not affiliated with any political party and, as he puts it: "Never did anything wrong." Further, the CRDD found that the applicant was unable to answer specifically or point to any particular triggering incident that would justify the alleged interest in him by the authorities. The applicant argues that it was the general atmosphere in which the society lived in at that time and not a particular incident that got him arrested. I agree with the respondent's submission that if the principal applicant contends that he never did anything wrong and was never a member of a political party, the CRDD could reasonably conclude that there would be no reasons for him to have been arrested.

• [24]            On the issue of subjective fear, the CRDD concluded that the principal applicant's explanation for their delay in fleeing Djibouti, which was almost one year after the alleged arrest, was not reasonable and that their delay was not consistent with a fear of persecution. The CRDD held that, had the principal applicant been afraid of being persecuted in Djibouti, he would have found a way for his family to leave the country sooner. The principal applicant stated in his testimony that he had no reason to go to Ethiopia, even though this is where the rest of his family ended up. He further responded that delay in leaving the country is simply a factor to consider among others and is not critical in determining credibility. I am of the view that the CRDD's conclusion on the applicants' delay in leaving Djibouti was reasonably open to it.
• [25]            Mr. Justice Cullen, in Khaled Ahmed, supra, stated, at paragraph 24, that:

[24]    Considerable deference is accorded to the CRDD on judicial review for credibility determinations as the panel is in a better position than the reviewing Court to make such findings. When making credibility findings, the panel is duty bound to give clear reasons, which are reasonable in light of the evidence before the panel.

• [26]            In my view, the respondent gave clear reasons as to why it found the principal applicant not credible. In Aguebor v. Canada (M.E.I.), 1993 160 N.R. 315 at pp. 316-317 (F.C.A.), at para. 4, the Court left no doubt as to the CRDD's jurisdiction to determine the plausibility of testimony and the standard of review to be applied by the Court in reviewing such findings:

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.

• [27]            I conclude that the CRDD's plausibility findings are supported by clear reasons and supported by the evidence before it.

Psychological Report

• [28]            The principal applicant also submits that the CRDD dismissed the applicant's psychological report because it did not support its conclusion as to the applicant's credibility, and therefore erred in not giving it any weight.
• [29]            In Boye v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 1329 (F.C.T.D.), at para. 4, The Associate Chief Justice Jerome confirmed that questions relating to weight of evidence are within the jurisdiction of the CRDD as the trier of facts with respect of Convention refugee claims:

...To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims...

• [30]            In Al-Kahtani v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 335, on line: QL, Mr. Justice MacKay, of this Court, dealt with the issue of weight to be given a psychiatric report by the tribunal. He stated page 4, para. 14, of his reasons:

...I am not persuaded that the tribunal's determination of the weight to be given to the report was unreasonable. But even it if were, at most the report supports the applicant's difficulties with post-traumatic stress disorder, but not the particular facts that he alleges give rise to his claimed fear of persecution. In my opinion, that is the essence of the tribunal's conclusion in relation to the report and that conclusion cannot be said to be unreasonable or in error in law.

• [31]            The psychiatric report is based upon the acceptance of a version of events which the CRDD had rejected. It was reasonably open to the CRDD to find that there was no credible and trustworthy evidence before it linking the post-traumatic stress symptoms to the principal applicant's political opinion, expressed or attributed. I am therefore of the view that the CRDD did not err in attributing little or no weight to the report.

Persecution

• [32]            In its reasons, the CRDD stated the following with regards to persecution:

To be considered persecution, the mistreatment suffered or anticipated must be serious, there must be serious harm inflicted. Moreover, to be considered persecution, the mistreatment suffered or anticipated must be inflicted with persistence, with repetition. Persecution, therefore entails a sustained violation of basic human rights, considered essential to the maintenance of the physical and moral integrity of an individual.

• [33]            In Sagharichi v. Canada (Minister of Employment and Immigration), 1993 F.C.J. No. 796 (F.C.A.), at para. 3, Mr. Justice Marceau of the Federal Court of Appeal explained the distinction between incidents of discrimination and those of persecution:

It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved. It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable.

• [34]            The CRDD acknowledged that the country documentation reflected discrimination against members of the Gadaboursi tribe by the Djibouti government but did not consider such treatment to be persecution. The following is an excerpt from Ali Coubba, Djibouti, Une nation en otage, Paris, L'Harmattan, at pages178 and 187:

...Or, par une politique de sape, de démoralisation et d'exclusion, ces deux familles Somalis [Gadaboursis and Ishaaks] ont subi la discrimination Issa autant que les Afars, mais de manière plus insidieuse.

...

...L'attribution préférentielle des postes de responsabilité à des Issas ont contraint les diplômés djiboutiens Gadaboursis et arabes, à tenter leur chance à l'étranger, notamment au Canada.

• [35]            From the Country documentation, the CRDD found that the people which are mistreated because of their political opinion, are normally the ones more actively opposed to the regime and the ones involved at a higher level in the political opposition. [Djibouti: Treatment of Issa and Afar members of the FRUD who have family members in the rebel faction of the FRUD still opposed to the government", 13 December 1999, DJI33396.E]. Other County Reports assert that members of the Somali clans, including the Gadaboursis, still have a limited access to important positions in the government of Djibouti. [Djibouti: Ethnic group known as "Samaron", including affiliated groups and associations; the treatment of its members by the government and the population in general (since 1960), August 1999, DJI32533.FE]. The CRDD also refers to the documentary evidence stating that the relations between the Issa and the Gadaboursis have improved.

• [36]            The CRDD concluded that the acts that the applicants had been subjected to constitute harassment and discrimination but not persecution. A review of the documentary evidence lends support to the CRDD's findings that the applicants would not be subject to persecution upon their return to Djibouti. In light of the extensive documentary evidence considered by the CRDD, I am of the view that it was reasonable for the tribunal to conclude that the applicants would not face persecution should they return to their country.

2.         Did the CRDD draw unreasonable inferences from the evidence?

• [37]            The applicants submit that the CRDD erred in dismissing the political discussion the applicant had at the maglis simply because "khat" was being consumed at the time. The applicants argue that the interpretation of these facts was tainted by Western concepts. The applicants also argue that the CRDD's conclusion that persons involved in discussions in the "maglis" were not arrested and detained, was made without regard to the evidence before them.
• [38]            I find the applicants' submission to be without merit. The CRDD did not dismiss the political discussion at the maglis because "khat" was being consumed nor did it conclude that people involved in discussions at the "maglis" were not arrested or detained. What the CRDD did state in its reasons is that:

...There is no indication in the evidence before us suggesting that people involved in nebulous and confused political discussions while at the maglis are arrested and detained.

In light of the evidence before the CRDD, I do not find such a conclusion to be unreasonable.

• [39]            The applicants further submit that the CRDD drew an unreasonable inference in finding that the principal applicant had not asked for the support of his peers, elders or colleagues from his days in the army. It is alleged that in the absence of any evidence of who the applicant was connected to and in what way these persons could have helped him, the CRDD was speculating that the applicant might have been offered assistance.
• [40]            The respondent did not present any argument relating to this issue. However, in my view, it was not unreasonable for the CRDD to find it implausible that, "...a retired sergent chef would not try to seek the help of his peers after having been arrested, tortured and detained illegally." The jurisprudence of this Court has established that the CRDD may draw reasonable inferences from the evidence presented, and also from common sense and rationality. Given the principal applicant's prior extensive service in the military and the contacts he would have made while a member, the CRDD's inference was not, in my view, unreasonable.

3.         Did the CRDD err in its assessment of the documentary evidence?

• [41]            The applicants submitted that the CRDD's assessment of the documentary evidence regarding the mistreatment of political opponents was unreasonable in light of the documentary evidence that was relied upon by the CRDD.

• [42]            It is well established that a Court may not substitute its view of the facts for that of the CRDD unless the Court is satisfied, not only that the tribunal made a palpably erroneous finding of material fact, but also that the finding was made "without regard to the evidence". [See Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35].
• [43]            The jurisprudence of this Court has also established that it is within the specialized jurisdiction of the CRDD to determine the weight to be assigned to evidence before it. It is also well established that the CRDD is entitled to rely on documentary evidence it prefers.

• [44]            It is useful to reproduce the comments of my colleague Mr. Justice MacKay in Pehtereva v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 200. At paragraphs 12 of that case, Mr. Justice MacKay stated:

...Reliance upon such sources cannot be characterized as error; even if the newspaper articles submitted by the applicant provided examples indirectly supportive of the applicant's claim, for it is trite law that the weight to be assigned to given documents or other evidence is a matter for the tribunal concerned. Even if the reviewing court might have assigned different weight or reached other conclusions that provides no basis for the reviewing court to intervene where it is not established that the tribunal has been perverse or capricious or its conclusions are not reasonably supported by the evidence. [My emphasis]

• [45]            In the instant case, the CRDD supported its finding that the applicants would not be subject to persecution upon their return to Djibouti with evidence drawn from several documentary sources.

Further, the principal applicant has provided no evidence to establish that he, a Gadaboursi not affiliated with any political party or movement, would be subject to serious harm that would amount to persecution. Consequently, I am of the view that the CRDD committed no reviewable error in its treatment of the documentary evidence and that its conclusions based on this evidence were reasonably open to it.

CONCLUSION

• [46]            I conclude that the CRDD's decision was made with regard for all of the material before it and not on an erroneous finding of fact made in a perverse or capricious manner. The CRDD's conclusion was reasonably open to it.
• [47]            For the above reasons, the application for judicial review will be dismissed.

• [48]            The parties, having had the opportunity to raise a serious question of general importance as contemplated by section 83 of the Immigration Act, have not done so. Therefore, I do not propose to certify a serious question of general importance.

                                                                            ORDER

THIS COURT ORDERS that:

1.                    The application for judicial review is dismissed.

                                                                                                                                 "Edmond P. Blanchard"                  

                                                                                                                                                               Judge                  

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-6543-00

STYLE OF CAUSE:                           SOULEMAN OSMAN, Waberi

SOULEMAN OSMAN, Moussa v. M.C.I.

PLACE OF HEARING:                     Ottawa, Ontario

DATE OF HEARING:                       February 27, 2002

REASONS FOR ORDER AND ORDER:                          BLANCHARD J.

DATED:                                                June 10, 2002

APPEARANCES:

Karla Unger                                                                                    FOR PLAINTIFF / APPLICANT

Lynn Marchildon                                                                            FOR DEFENDANT/ RESPONDENT

SOLICITORS OF RECORD:

Bell, Unger, Morris                                                                         FOR PLAINTIFF/APPLICANT

114 Argyle Avenue

Ottawa, Ontario, K2P 1B4

Morris Rosenberg                                                                           FOR DEFENDANT/RESPONDENT

Deputy Attorney General of Canada

Department of Justice

Room 2206, East Memorial Building

284 Wellington Street

Ottawa, Ontario, K2P 1B4