Date: 19990805
Docket: IMM-6394-98
OTTAWA, ONTARIO, AUGUST 5, 1999
| Before: PIERRE DENAULT J. |
Between:
ABALA MOHAMED AL DALAWI,
Plaintiff,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
ORDER
The application for judicial review is dismissed.
Certified true translation
Bernard Olivier, LL. B.
Date: 19990805
Docket: IMM-6394-98
Between:
ABALA MOHAMED AL DALAWI,
Plaintiff,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
DENAULT J.
[1] This is an application for judicial review from a decision of the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") on November 3, 1998 that the plaintiff, a citizen of Iraq, is not a Convention refugee.
[2] The plaintiff, a Kurd who is a Muslim, was born in Iraq on July 1, 1969. In 1984 he joined the Kurdish Democratic Party ("KDP"). In November 1998 he began his military service in the Iraqi army, but in June 1990, fearing that charges of espionage would be laid against him, he deserted from the army. From February 1991 to 1994 the plaintiff remained active in the KDP, as an office employee. In early 1995 however the plaintiff refused to carry out an order of a KDP leader to carry a weapon and fight for the party. He fled Iraq on June 15, 1995 for Turkey. He stayed there until November 1995 and came to Canada after spending about two weeks in Malaysia.
[3] In his refugee status claim the plaintiff said he feared persecution by the government of Iraq, from whose army he had deserted, by the KDP, as he had refused to carry out an order of one of its leaders, and by the Patriotic Unity of Kurdistan party (PUK), a party opposed to the KDP, whose political opinions he did not share.
[4] The Refugee Division did not accept the plaintiff's testimony in view of the inconsistencies and contradictions which it contained and dismissed his claim for Convention refugee status.
[5] The plaintiff objected to the analysis by the Refugee Division, alleging that it had erred in dismissing his claim as a whole. In particular, he objected that the panel had failed to take into account that in his statement at the point of entry ten days after his arrival in Canada he had stated that he was a member of the KDP.1 He further objected that the panel had found in his statement at the point of entry, his personal information form and his testimony at the hearing omissions and contradictions which were harmful to the assessment of his credibility.
[6] In the case at bar it is clear that the Refugee Division made an exaggerated statement when it wrote that [TRANSLATION] "the plaintiff never made any reference to any political party, the KDP or any other" in his statement made at the point of entry, whereas a note beside the organizations of which the plaintiff was a member indicated "Democratic Party (Kurdish)" (p. 025 of the panel's record). This does not mean that the decision is wrong and should be quashed.
[7] On the contrary, I feel that in the case at bar the Refugee Division did not base its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, as stated in s. 18.1(4)(d) of the Federal Court Act, and that based on the evidence it was unreasonable to conclude that the application should be dismissed.
[8] In his testimony the plaintiff stated that his principal fear of persecution was directed at the Iraqi government, whose army he had deserted; and his testimony in this regard was regarded as contrived by the panel and [TRANSLATION] "his answers were vague and involved" (p. 4 of the decision). Despite the seriousness of the action, the Refugee Division found that neither he nor his family was upset as a result of this desertion. As to the plaintiff's fear that the KDP, for which he had worked and as to which he now said he had a fear of persecution because of his refusal to carry out an order to bear arms, the panel did not believe any of this, nor did it believe his fears of reprisals by the PUK. In short, it appeared from the reasons for decision that the members of the Refugee Division were unable to accept the credibility of the claimant's story as a whole.
[9] In conclusion, I consider that the Court's intervention is not justified in the case at bar.
[10] At the close of the hearing counsel for the plaintiff submitted that the Court should certify the following question for purposes of an appeal to the Federal Court of Appeal: [TRANSLATION] "Is the examination form at the port of entry admissible evidence in a refugee status claim? If so, did the immigration officer have a duty to give the claimant all of this evidence with all the relevant documents at the time of referral to the Refugee Division?".
[11] I do not feel there is any reason to certify this question. Under s. 68(3) of the Immigration Act, the Refugee Division is not bound by the legal or technical rules of presenting evidence and may admit evidence it finds credible or trustworthy. Additionally, this point has already been the subject of judgments of this Court which not only admitted the statements made at the point of entry but also found that they did not infringe the rules of natural justice.2 Finally, as the admission of this evidence was not challenged at the hearing before the Refugee Division, the certification of this point certainly cannot dispose of this appeal.
OTTAWA
August 5, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: ABALA MOHAMED AL DALAWI v. MCI |
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JULY 28, 1999
REASONS FOR ORDER BY: DENAULT J.
DATED: AUGUST 5, 1999
APPEARANCES:
| JOYCE YEDID FOR THE APPLICANT |
| CLAUDE PROVENCHER FOR THE RESPONDENT |
SOLICITORS OF RECORD:
JOYCE YEDID FOR THE APPLICANT
CLAUDE PROVENCHER FOR THE RESPONDENT
Morris Rosenberg
Deputy Attorney General of Canada
__________________
1 At p. 4 of that decision, the Refugee Division wrote: [TRANSLATION] "Nevertheless, in the foregoing statement (Exhibit A-7), the plaintiff never referred to any political party, the KDP or any other, of which he was a member in Iraq".
2 Mongu and Mboyo v. Canada (Solicitor General) 1994, 86 F.T.R. 59; Abdoli v. Canada (Minister of Citizenship and Immigration) IMM-3769-94, decision of February 17, 1995 (Muldoon J.) and Lin v. Canada (Minister of Citizenship and Immigration) IMM-4684-94, decision of September 27, 1995 (Gibson J.).
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