the message advised him that internal
security was waiting for his return to Libya and would be
taking action against him due to a message he had written on the rock-face of a
mountain in January 2004.
II. Facts
[3]
The
Applicant was employed with the Waha Oil Company in Tripoli as a
computer programmer. In January 2004, during a visit to his parents in Azentan, Libya, the
Applicant and his friend, Othman Al Alazhary, went for a drive and parked
near a mountain. The Applicant was frustrated with the Libyan regime and wrote
derogatory comments directed at the Libyan government on a rock with burnt wood
ash.
[4]
In
October 2004, the Applicant was sent to Canada on a one-year
study permit for computer training at the Southern Alberta Institute of
Technology. Before the expiry of his study permit, in October 2005, the
Applicant requested that his company extend his study permit by a month in
order for him to complete his exams. While the evidence is unclear as to whether
the extension is related to the Applicant’s visa, and if so how his
employer would obtain this extension, it nevertheless refused his request. The
Applicant was, however, permitted to use his vacation days and apply to remain
in Canada until March
2006.
[5]
The
Applicant proceeded to enroll in an English course in Calgary in order to
secure a new student permit. Such permit was granted and was valid from
November 2005 until June 30, 2006. The Applicant only attended the first two
(2) days of the course and never paid the full tuition.
[6]
After
completing the examinations in November or December of 2005, the Applicant made
inquiries regarding the possibility of enrolling in a Masters Program in Canada. The
Applicant claims to have applied, with the help of his father, for a
scholarship in Libya and that preliminary approval was granted.
[7]
In
the beginning of 2006, the Applicant applied to the Canadian Consulate in
Seattle for a multiple entry visa as he wanted to be able to return to Libya for Eid, a religious
holiday, since the study permit did not allow for such travel.
[8]
In
March 2006, the Applicant requested more vacation time from his company and
this was granted until May 2006, two months prior to the expiry of his second
visa.
[9]
In
April 2006, the Applicant was informed that his scholarship application was
denied by the internal security department in Libya. The Applicant
claims to have immediately begun his preparations to return home as he could
not afford to continue to study in Canada without financial
assistance. He also stated other reasons why he decided to return; his sister
was getting married and his grandmother was ill.
[10]
On
or around May 6, 2006, the Applicant allegedly received an off-line message on
his Yahoo Messenger account from his brother informing him that a friend of
their father’s who works at the internal security department had informed their
father that internal security had arrested Othman Alazhary, the Applicant’s
friend, and that he had revealed that the Applicant was the author of the
derogatory comments written on the mountain two years prior. According to the
Applicant, his father’s friend had also related that internal security was
waiting for the Applicant to return at which point they would take actions
against him.
[11]
The
Applicant sought legal advice and filed his refugee claim in either May or June
of 2006. A hearing was held in Edmonton on August 20, 2007, and
resumed in Calgary on November
27, 2007.
[12]
On
February 25, 2008, the Board denied the Applicant’s refugee claim finding that
the Applicant is not a Convention refugee and is not a person in need of
protection.
III. Impugned
Decision
[13]
The
Board found that the Applicant failed to provide sufficient credible and
trustworthy evidence to establish his claim, and consequently denied his
application for refugee status based on political opinion. The Board concluded
that the Applicant was neither a refugee nor a person in need of protection.
[14]
I
summarize below the findings upon which the Board based its decision:
·
The
Applicant provided no credible information regarding his friend’s arrest.
·
The
Applicant’s family has not been approached by authorities.
·
While
the Applicant testified that he did not know whether security was looking for
him at the time he left and that there had been no rumours circulating about
the derogatory message he wrote, the notes taken by the immigration officer
during the first interview reveal the opposite version of this story. The Board
did not accept the Applicant’s explanation for the discrepancy that perhaps
there were problems with the Arabic interpretation.
·
The
central issue of the Applicant’s claim is the alleged off-line message sent to
him from his brother in Libya, and yet there is no evidence to
corroborate either the fact that it was actually sent, or the content of the
message.
·
The
Board rejected the Applicant’s reasons for not requesting corroborating documentation
from his brother, noting that the Applicant had otherwise communicated with his
father on other issues such as obtaining education transcripts from Libya and
applying for a scholarship to study in Canada.
·
The
Applicant was prepared to manipulate the immigration procedures by enrolling in
an English course to obtain an extension to his study permit; and his efforts
to obtain a multi-entrance visa prior to initiating his refugee claim indicate
a strong desire to remain in Canada and a behaviour consistent with a person
wanting to get legal status. The Board found that the Applicant had fabricated
his allegations in order to create the basis for his sur place claim.
·
The
Applicant had not provided significant evidence of his own personal situation
or any evidence of any difficulties he may have had with government authorities
prior to leaving Libya.
·
The
above elements are sufficient to rebut the presumption of truthfulness; consequently,
there is insufficient credible evidence to support the central element of the
Applicant’s claim.
IV. Issues
[15]
The
Applicant raises the following issues:
(1) Did the panel member err in understanding
the Applicant’s evidence so as to affect her impression and assessment of the
Applicant’s credibility?
(2) Was the panel member’s finding with respect
to the Libyan government’s control of communications supported in the evidence
before her?
(3) Did the
panel member fail to consider the totality of the evidence before her with respect
to her assessment of whether the Applicant would face risk for having claimed
refugee protection in Canada?
V. Standard of Review
[16]
All
three issues, as pled by the Applicant, are essentially determinations of fact.
It is well established in law that such determinations are reviewed on a
standard of reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9,
1 S.C.R. 190 at para. 51). As such, the weighing of the evidence presented must
have resulted in a decision which was “within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
supra para. 47).
VI. Analysis
[17]
The
Applicant takes issue with what the Board described as a contradiction between
the Applicant’s testimony and the information he provided to the immigration
officers when he initiated his claim.
[18]
At
paragraph 16 of its reasons, the Board wrote:
The
panel does note a significant contradiction between the Applicant’s testimony
and the information that he provided to immigration officers when he initiated
his claim. The Applicant testified that there were no rumours about the message
he alleges he wrote before he left Libya.
He added that there were no rumours at his place of work about the message on
the wall. He testified that he could not say if security was looking for him at
the time he left. The Applicant was referred to the notes taken by the
immigration officer during the interview when he initiated his refugee claim.
The notes taken indicate the Applicant stated that two days after he wrote
the message he returned to work and there were rumours that internal security
was looking for the people who wrote the graffiti.
[19]
A
careful review of the transcripts of the hearing indicates that the Applicant
was asked whether there were rumours about him writing the graffiti and that he
responded in the negative. However, he also testified that people were talking
about the message he allegedly wrote. He stated that his father had informed
him, two days after the incident, that there was “quite a bit of noise around
it”. It is equally clear, from the transcripts, that he indicated that people
at his work knew about the message about one month after the event.
[20]
The
Board’s finding that the Applicant, “… testified that he could not say if
security was looking for him at the time he left” is also questionable. This
finding is based on the Applicant’s response to the following question by the presiding
member, “… do you think at that time that Internal Security went to the village
looking for someone who wrote it?” He responded that:
[i]t could be a case where, because they
can’t have proof, they can’t just go around and catch people, accuse them
of writing this. It could be a case where they could take pictures to what was
written, they can do their investigation, they try to find out who wrote it
before they follow up on it.
The Applicant’s response focused on whether
or not security went to his village rather than whether or not there was an
investigation under way. This is reasonable given the wording of the question
put to him and consistent with the Applicant’s PIF wherein he states that
security was looking for him, but he does not say they went to his hometown to
do so.
[21]
It
is difficult to conclude, from a holistic review of the evidence, that there is
a serious contradiction between the Applicant’s testimony and the notes taken
by the immigration officer. While the evidence may support a contradiction in
the technical sense, it is not one that would warrant the rejection of the
refugee claim. Indeed, this is acknowledged by the Board in its reasons when it
found that the contradiction, although significant, may not be fatal to the
claim.
[22]
The
Board’s decision, however, is based also on other findings which I have
summarized earlier in these reasons. The Board considered the Applicant’s
behaviour since his arrival in Canada and found it consistent with a person
wanting to obtain status in Canada. The Board noted his knowledge of Canadian
immigration procedures and policies and his willingness to manipulate the
system to achieve his goals. On the evidence, these findings were reasonably
open to the Board.
[23]
The
Board found the Applicant had not submitted any corroboration for the central
issue of his claim that he had received an “off-line” e-mail from
his brother in Libya. It rejected the Applicant’s explanation that
he did not attempt to obtain evidence because his family was in danger. The
Applicant did not establish that his family had any kind of political profile
or problems with Libyan authorities. The evidence indicates that his father had
friends in government and worked for the post office. The Board also noted that
no evidence was adduced with respect to the arrest of the Applicant’s friend.
It was open to the Board to find that there was insufficient credible evidence
to establish on a balance of probabilities that the Applicant even received a
message from his brother.
[24]
The
Applicant challenges the Board’s treatment of the documentary evidence with respect
to the Libyan government’s control of communications. The Board noted that the
evidence does not indicate that all telephones are tapped or that all computers
are monitored. A review of this evidence, particularly the parts brought to my
attention by counsel for the Applicant, do not refute this observation. There
is no evidence to suggest that individuals with the Applicant’s profile or that
of his family are targeted by Libyan authorities. While the documentary
evidence shows the Libyan authorities cannot be taken on their word, the
Board’s finding regarding the Libyan government’s control of communications is
not at odds with the documentary evidence.
[25]
Notwithstanding
the Board’s questionable finding relating to the alleged contradiction in the
Applicant’s evidence, I am of the view that, on the whole of the evidence, the
Board’s above findings of fact and credibility are not unreasonable. It was
open to the Board to conclude that the Applicant fabricated the allegations
which make up the basis of his claim in order to initiate a sur place
claim allowing him to stay in Canada. The Board considered all the evidence and
properly exercised its discretion in weighing and assessing the evidence. As a
consequence, the Board did not err in finding that the Applicant was not a
Convention refugee or a person in need of protection.
VII. Conclusion
[26]
For
the above reasons, the application for judicial review will be dismissed.
[27]
The
parties have had the opportunity to raise a serious question of general
importance as contemplated by paragraph 74(d) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 and have not done so. I am satisfied
that no serious question of general importance arises on this record. I do not
propose to certify a question.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The
application for judicial review of the February 25, 2008 decision rendered by
the Immigration and Refugee Board is dismissed.
2. No
question of general importance is certified.
“Edmond P. Blanchard”
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