Date: 20081117
Docket: IMM‑1174‑08
Citation: 2008 FC 1274
Ottawa, Ontario, November 17,
2008
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
MARIAM
AHMAT MAHAMAT ALI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review, under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the panel) dated February 14, 2008, which determined that the
applicant was neither a Convention refugee nor a person in need of protection.
I. Issue
[2]
Did the Tribunal
err by deciding that the applicant was not credible and that she did not
demonstrate that she had valid reasons for fearing to return to Chad?
II. Facts
[3]
The
applicant, Mariam Ahmat Mahamat Ali, is a citizen of the Republic of Chad and was born on
August 17, 1987, at N’djamena. She is the child of a patriarchal
Islamic family strongly dominated by religious beliefs and traditions.
[4]
On the
evening of May 15, 2006, the applicant’s father gave her in marriage
to Mahamat Nour Idriss, without her consent or the consent of her
mother, by carrying out Fathia. Fathia is a religious union before the marabouts,
which took place in the mosque.
[5]
Mahamat
Nour Idriss is a polygamist and has a number of children, some of whom are the
same age as the applicant.
[6]
Despite
the applicant’s categorical rejection of the marriage, her father refused to
reconsider his decision.
[7]
After
sunset on October 6, 2006, five months after the Fathia, a large
delegation of Mahamat Nour Idriss’ relatives went to the house of the
applicant’s parents bearing gifts. She was then taken by force to the home of Mahamat
Nour Idriss. Over the next ten days, her husband insulted, beat and raped her.
[8]
On October
26, 2006, the applicant fled her spouse’s home and took refuge at the home
of her maternal uncle Mbodou Adamou Mahamat.
[9]
A few days
later, her husband, accompanied by the marabouts and the applicant’s father,
burst into her uncle’s house, and the applicant was taken back to her husband
the same evening. She was again beaten by her husband.
[10]
With the
assistance of her uncle and her mother, the applicant left Chad fraudulently on March 11, 2007,
and landed in the United
States two days
later. She arrived at the Lacolle border crossing on March 20, 2007,
and claimed refugee protection in Canada.
III. Impugned decision
[11]
The panel
determined that the applicant was not credible or trustworthy because her
testimony contained numerous omissions, contradictions and inconsistencies.
[12]
By way of
example, when the panel asked her if other members of her family had been
forced to marry against their will, the applicant responded that most of them
had. She gave as an example her aunt’s daughter. She also stated that her
sister Soureya had suffered the same fate. But this sister was not on the list
in the applicant’s narrative. The panel did not accept the applicant’s explanation
for the omission. The applicant said that she had omitted to mention her
because she did not get along well with her.
[13]
Another example
involved her sister Fanna who was, the applicant said, an extra in the list
because she did not have the same mother. However, a little later, she changed
her testimony and said that Fanna did have the same mother as she did.
[14]
The panel
mentioned other examples. There were contradictions regarding the people whom
she asked for help on May 15, 2006. The date of her engagement or
wedding came under criticism by the panel. First, she said that the wedding was
at the Fathia ceremony (May 15, 2006), but later she said that it was
on October 6 when she was taken to her husband’s home.
IV. Analysis
A. Standard of
review
[15]
Where
credibility and the assessment of evidence are at issue, it is settled law,
under subsection 18.1(4)(d) of the Federal Courts Act, R.S.C.
1985, c. F‑7, that the Court will only intervene if the decision is
based on an erroneous finding of fact that it made in a perverse or capricious
manner or without regard for the material before it.
[16]
Assessing
credibility and weighing the evidence is within the jurisdiction of an
administrative tribunal, which must assess the refugee claimant’s allegation of
subjective fear (Cepeda‑Gutierrez v. Canada (Minister of Citizenship
and Immigration), (1998) 157 F.T.R. 35 (F.C.T.D.), 83 A.C.W.S. (3d) 264 at paragraph 14).
[17]
Before the
decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the appropriate
standard of review in similar circumstances was patent unreasonableness. Now,
it is reasonableness.
Did
the Tribunal err by deciding that the applicant was not credible and that she
did not demonstrate that she had valid reasons for fearing to return to Chad?
[18]
When
dealing with similar facts, a reviewing court must ask the following question:
“Is the inferior tribunal’s decision based on the evidence?”
[19]
Without
the benefit of having heard and seen the applicant, the Court analysed the
documents that were filed as evidence as well as the transcript of the hearing.
After that step, the Court could see whether the reasons that are the basis of
the decision are supported by the evidence.
[20]
The issue
here is not whether the Court would have come to a different conclusion. In
this case, and after analysing the above‑noted documents, the Court is of
the view that the panel’s decision contains all the elements of a reasonable
decision.
[21]
The omissions,
contradictions and inconsistencies noted by the panel are supported by the
evidence. Whether the issue was the date of the engagement or the forced
marriage (pages 44, 135 to 153 and 160, tribunal record), the composition of
the family (page 125, tribunal record) or the assistance requested by the
applicant (pages 144 to 146, tribunal record), it was not unreasonable for
the panel to doubt the applicant’s credibility.
[22]
The Court
cannot intervene unless a reviewable error has been demonstrated.
[23]
The parties
did not pose any question for certification and the record does not contain one.
JUDGMENT
THE COURT ORDERS that the
application for judicial review is dismissed. No question is certified.
“Michel Beaudry”
Mary
Jo Egan, LLB
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