IMM-2908-96
B E T W E E N:
ALI
MOHAMED HAMIDI
Applicant
-
and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS
FOR ORDER
HEALD, D.J.:
This is an application for judicial review of a decision of
the Convention Refugee Determination Division (the "CRDD") which
denied the applicant's claim to Convention refugee status.
THE FACTS
The applicant is a citizen of Afghanistan. He arrived in
Canada via England and Pakistan on February 3, 1995. He claimed Convention
refugee status on February 13, 1995. In 1990, as a student in Afghanistan, he
became a member of the Democratic Youth Organization of Afghanistan (the
"DYOA"). This was a Communist youth organization organized by the
Communist government of Afghanistan. In 1992 the new government formed by the
Mujaheddin banned all activities previously supported by the Communist
government. The applicant was arrested in June of 1993 by the new government
and was imprisoned. He was released but subsequently arrested again in January
of 1994. He was detained for 6 months in a dark cell, beaten and abused
physically. He was released upon the intervention of his father who bribed his
captors. In October 1994, he was beaten and sexually abused by the Hazaris, a
Mujaheddin group, while his mother watched.
After this incident, the applicant's father decided that
the applicant could not remain in Afghanistan. He left Afghanistan in October
1994 through the assistance of his father's business partner. He went to
Pakistan for 3 months, then to London, thence to Canada on a false Swiss
passport.
THE DECISION OF THE CRDD
A panel of the CRDD denied the applicant's claim. The
panel's decision contains a number of comments that could be construed as
impugning the applicant's credibility. The panel did not believe that the
applicant was arrested for a second time by the Mujaheddin. They concluded
that there was lack of credibility in a number of other facets of the
applicant's evidence. Because they doubted the applicant's credibility in a
number of areas, they also doubted the extent of the injuries suffered by him.
The panel also found that the claimant's allegation of sexual abuse at the
hands of the Hazaris was not credible. They further concluded that the
applicant did not leave Afghanistan for political reasons but rather to escape
the extortions of the Hazaris which were not politically motivated. Finally,
the panel determined that the applicant had not established that he met the
definition of a Convention refugee. Furthermore, it was their decision that
the requirements for an Internal Flight Alternative in Northern Afghanistan had
been fulfilled.
ANALYSIS
In essence, the CRDD decided that had the applicant's
testimony been credible, it would have found that the applicant had a well
founded fear of persecution. However, the CRDD did not find credibility in the
applicant's evidence. The leading decision on this issue is the decision of
the Federal Court of Appeal in Aguebor v. M.E.I. In that
case Marceau J.A. stated:
"There is no longer any doubt that the
Refugee Division, which is a specialized tribunal, has complete jurisdiction to
determine the plausibility of testimony. ... 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 my view, the Tribunal's credibility findings are
supported by the evidence and should not be set aside. I would also rely on
the decision of the Federal Court of Appeal in the case of Djama v. M.E.I.
A-738-90 June 5, 1992, where it was held that the Board's reasons should not be
examined microscopically with a view to finding every possible inconsistency or
implausibility and that evidence should not be rejected in toto because
of minor inconsistencies on a subject matter that is not central to the
applicant's claim. This view of the matter was confirmed in Mohammadi v.
M.C.I. IMM-2507-96, April 16, 1997 on the basis that the CRDD is entitled
to prefer documentary evidence over the sworn testimony of an applicant
provided that the inferences drawn from that evidence are reasonable and the
grounds for preferring the documentary evidence are stated in clear and
unmistakable terms.
In view of my conclusion that the negative credibility
findings of the CRDD are supported by the record, it becomes unnecessary to
examine the issue of IFA.
CONCLUSION
For the foregoing reasons, I would dismiss the within
application for judicial review.
CERTIFICATION
Neither counsel suggested certification of a serious
question of general importance pursuant to the provisions of Section 83 of the Immigration
Act. I agree with that view of the matter. Accordingly no question will
be certified.
"Darrel V. Heald"
D.J.
Toronto, Ontario
June 12, 1997
FEDERAL
COURT OF CANADA
Names
of Counsel and Solicitors of Record
COURT NO: IMM-2908-96
STYLE OF CAUSE: ALI
MOHAMED HAMIDI
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
DATE OF HEARING: JUNE
11, 1997
PLACE OF HEARING: TORONTO,
ONTARIO
REASONS FOR ORDER BY: HEALD,
D.J.
DATED: JUNE
12, 1997
APPEARANCES:
Mr.
Rodney L.H. Woolf
For
the Applicant
Jeremiah
Eastman
For
the Respondent
SOLICITORS OF RECORD:
Rodney
L.H. Woolf
Barrister
& Solicitor
100-1474
Bathurst Street
Toronto,
Ontario
M5P
3G9
For
the Applicant
George Thomson
Deputy
Attorney General
of
Canada
For
the Respondent
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