Date: 20071029
Docket: IMM-5578-06
Citation: 2007 FC 1101
Toronto, Ontario, October 29, 2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
MOHAMED
FARHAM MOHAMED MASHOOD
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Mohamed Mashood claimed refugee protection in Canada based on his
fear of political persecution in Sri Lanka. A panel of the Immigration and
Refugee Board dismissed Mr. Mashood’s claim because of a lack of credible
evidence. Mr. Mashood argues that the Board did not afford him a fair hearing
and erred in its treatment of his testimony. He asks me to order a new hearing
before a different panel of the Board.
[2]
I can find no basis for overturning the Board’s decision and must,
therefore, dismiss this application for judicial review.
I. Issue
1.
Did the Board treat Mr. Mashood unfairly?
2.
Did the Board err in its treatment of the evidence?
II. Analysis
1.
Did the Board treat Mr. Mashood unfairly?
[3]
Mr. Mashood submits that the Board questioned him aggressively, did not
give him a chance to explain apparent inconsistencies in his testimony, and
adopted a hostile attitude toward him, all of which caused him to become
confused and upset.
[4]
I have reviewed the transcript of the hearing in its entirety. It
appears to me that there were points during the hearing when the presiding
member was having difficulty understanding Mr. Mashood’s testimony. He clearly became
frustrated. While this conduct was less than exemplary, I cannot conclude that
Mr. Mashood was denied a fair opportunity to present his evidence. This
conclusion is borne out by the Board’s reasons which, as discussed below, set
out a fair assessment of the evidence.
[5]
Mr. Mashood also argues that the Board unfairly questioned him at the
end of the hearing when there was no opportunity for him to clarify his
testimony through further questions from his
own counsel. Again, having reviewed
the transcript, I do not accept this submission. Mr. Mashood’s counsel had an
opportunity to put further questions to him after the Board had completed its
questioning. Any remaining ambiguities in his testimony could have been
resolved at that point in the hearing.
[6]
Finally, Mr. Mashood suggests that the Board refused to allow his
counsel to question him first because it was worried that it would take too
much time. At the opening of the hearing, the presiding member mentioned that
he had granted a similar request in another case that morning which caused him
to be late for Mr. Mashood’s hearing. As I view the exchange between the Board
and counsel on this point, I am satisfied that the Board felt that it would not
be unfair for it to question Mr. Mashood first. The comment about being late
was simply an off-hand remark that should not be taken out of context.
2.
Did the Board err in its treatment of the evidence?
[7]
In its reasons, the Board pointed out numerous grounds for doubting Mr.
Mashoud’s account of events. Before me, Mr. Mashoud challenged two areas of the
Board’s decision.
[8]
First, the Board noted that Mr. Mashood had trouble remembering the date
of the provincial election in which he stood for office. He had given various
dates between July and October 2004.
At one point
during Mr. Mashood’s testimony, the Board asked him if he was sure about the date.
In essence, he answered “to the best of my recollection”. In its reasons, the
Board noted that Mr.
Mashood had
said he was sure about the date and then contradicted himself. Mr. Mashood
points out that he never actually said he was sure. This is a minor quibble.
It is clear that Mr. Mashood’s testimony on this point was inconsistent. Even
though he did not actually say he was sure about the date, it was open to the
Board to draw an adverse inference from his inability to identify when the
election had taken place.
[9]
Second, the Board noted two areas where Mr. Mashood’s testimony seemed
implausible. Mr. Mashood had stated that his political opponents had not
targeted him during election campaigns because they would not have wanted to
attack him in public. In addition, Mr. Mashood had said that he was arrested on
suspicion of having associated with terrorists but, while in detention, he had
not been subjected to physical abuse. The Board found both accounts unlikely.
The Board noted that, if political opponents had actually targeted Mr. Mashood,
they could easily have found an opportunity to cause him harm during the
election campaign. Further, the Board concluded from documentary evidence that,
if Mr. Mashood had been suspected of having terrorist connections, it is likely
that he would have been subjected to physical abuse while in detention.
[10]
I can find no basis for overturning the Board’s decision on the basis of
these findings. They were open to the Board on the evidence before it.
[11]
Accordingly, I must dismiss this application for judicial review.
Neither party proposed a question of general importance for me to certify, and
none is stated.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that :
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
FEDERAL
COURT
NAME
OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5578-06
STYLE
OF CAUSE: MASHOOD v. MCI
PLACE OF HEARING: Toronto, ON.
DATE OF HEARING: October 16, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: O’Reilly
J.
DATED: October 29, 2007
APPEARANCES:
Jack Martin FOR THE APPLICANT
Alexis Singer FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Jack
C. Martin FOR THE APPLICANT Toronto, ON
tOTTT
John H.
Sims,Q.C. FOR
THE RESPONDENT
Toronto,
ON.
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