Date: 20031014
Docket: IMM-5955-02
BETWEEN:
MOHAMED (A.M.) ALHABOOB
NAJLA (A.) NOAMAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board ("Board") dated October 2, 2002. In its decision, the Board determined that Mohamed (A.M.) Alhaboob and Najla (A.) Noaman (the male and female applicants, respectively) were not Convention Refugees.
FACTUAL BACKGROUND
[2] Until 1997, the male applicant was an artist in Yemen. During the 1990s, he claims to have been persecuted, primarily by the government, due to his perceived political opinion which he expressed through art. Most seriously, in 1994, he claims to have been arrested and then warned to cease his artistic endeavours by the Minister of Interior. In 1997, with the alleged assistance of a relative, he went to the United States and became a Cultural Liaison Officer with the Yemeni Embassy.
[3] His wife, the female applicant, claims to have been persecuted during the 1990s by the Islamic Brotherhood, a Muslim extremist group associated with the Yemeni Government, due to her involvement in women's issues. She left Yemen with the male applicant in 1997.
[4] After approximately 6 months in the United States, the female applicant returned to Yemen in order to finish her education. Here, she claims to have became involved in women's issues again. In late 1997, male applicant also returned to Yemen.
[5] The couple claims to have been the victim of an assassination attempt on March 15, 1998. As a result, they returned to the United States. The couple spent approximately 1½ years in the United States, during which time they applied for asylum status. They claim to have been the victims of a break-in and assault instigated by the Yemeni government during this time. In August 2000, the couple came to Canada and applied for Convention Refugee status.
[6] The Board in a decision dated October 2, 2002, determined that the couple were not Convention Refugees. Leave to commence an application for judicial review was granted in July 2002.
DECISION OF THE BOARD
[7] The Board concluded that the couple were not Convention Refugees because their fear of persecution was not well-founded and their account was not credible. Its reasons for the periods 1994-1997, 1997-1998 and 1998-2000 were as follows.
Initial Period: 1994-1997
[8] The Board did not believe it be possible that the male applicant might have been persecuted by the state yet at the same time offered the position of Cultural Liaison Officer with the Yemeni Embassy in the United States. They considered his return to Yemen in 1997 inconsistent with a subjective fear of persecution. In addition, they noted that he had provided inconsistent testimony on related issues. For example, in oral testimony he stated that he left Yemen in 1997 in order to accompany his wife on a medical visit. However, in his written statement, he stated that he left with the help of the aforementioned family relative to take up a post with the embassy.
[9] The Board discounted the female applicant's claim that she had been persecuted by a Muslim extremist group associated with the government due to a 2001 report which stated that the government was deporting foreign extremists. In addition, they found inconsistencies in her claims. For instance, she provided different dates in written and oral testimony as to when she had been stabbed. Finally, the Board found that her claim of persecution was inconsistent with the fact that she returned to Yemen from the U.S. in 1997 and had not warned her husband about country conditions before he also returned to the country.
The Second Period: 1997-1998
[10] The Board discounted the couple's claim that they were persecuted after returning to Yemen in 1997 because:
1. The Members found it inconsistent for the female applicant to claim that members of her clandestine student group were offered protection by political parties and that she received no protection when she decided not to join a political party.
2. The Members found that documentary evidence of current country conditions was inconsistent with the couple's claim that an attempt had been made to assassinate them.
3. The Members found copies of articles which the female claimant had allegedly written to be unreliable.
4. The Members found the claim of persecution to be inconsistent with the fact that the state would have had ample opportunity to arrest the couple but did not do so.
5. The Members found that the couple had provided inconsistent testimony on several other issues.
1998-2000
[11] The Board found that the claimants' testimony was inconsistent as to when they commenced an asylum claim in the US. Based upon all the evidence, they concluded that the couple had come to Canada purely because they were afraid that they would not be granted asylum in the US. In addition, the Board found copies of a warrant allegedly issued for the male applicant's arrest to be unreliable evidence due primarily to the improbability of the Yemeni government issuing a warrant 6 years after an allegedly treasonous act.
ISSUES
[12] The applicants raise essentially two points:
1. Did the Board ignore testimony and documentary evidence?
2. Did the Board ignore the totality of the evidence?
[13] In particular, the applicants argue that the Board:
1. Accepted that the male applicant was an artist and that his art expressed political themes but refused to accept documentary evidence of the manner in which free speech is curtailed in Yemen.
2. Ignored the male applicant's testimony relating to his exhibition in Sanaa, which had been scheduled to run for 10 days but was closed after only 2 days by Security Forces. It is also submitted that the Board ignored his testimony that, after the French Ambassador offered to transfer the exhibition to the French Cultural Institute, he received a warning from the Security Forces that such an act would amount to treason.
3. Made too much out of the fact that, on his PIF, the male applicant did not refer to his wife's illness as the reason for why he travelled to the US in 1997 yet that he had mentioned it in oral testimony.
4. Erred in concluding that the applicants were not persecuted by the Yemeni government as the travelled to the US on a Diplomatic Visa. The applicants submitted a relative, who was working at the Yemeni Embassy, obtained the visa as a favour for them and that, as such, his actions could not be attributed to the Yemeni government.
5. Used the Department of State Report for 2001 to rebut the applicants' testimony that the state supported Islamic terrorism in 1994.
6. Placed too much emphasis on the fact that the female applicant confused the years of 1994 and 1996 in her testimony, because the discrepancy was due to the emotional stress which she was experiencing while testifying about traumatic events. It was submitted that this confusion should not be used to undermine her
credibility.
7. Misinterpreted the testimony relating to reavailment. It is submitted that the female applicant decided to return to Yemen's state university in order to finish her degree rather than to attend a private university due to the quality of education which she would receive at the public institution. The applicants' argue that a concern for the quality of her education rather than a concern for cost was the impetus, contrary to the conclusion reached by the Board.
8. Misinterpreted the female applicant's statements as to whether she alone or others were targeted and made undue inferences as to her credibility.
9. Misinterpreted the differences between the female applicant's PIF and her testimony regarding her pre 1996 activity. In addition, the applicants submitted that the female applicant's failure to mention events that she thought were set out in husband's PIF should not be used to impair her credibility.
10. Misinterpreted the evidence regarding their application for refugee status in the US. It was submitted that their failure to get a lawyer early because of lack of means should not be interpreted as vacillating testimony.
11. Wrongly discounted the documents presented as warrants for arrest and failed to consider them as part of the totality of the evidence.
[14] None of these point in my view amount to patent unreasonableness. The Board clearly looked at the totality of the evidence, considered inconsistencies and was simply not convinced that the applicants account was credible and that their fear was well founded. Credibility is a question to be determined by the Board. The Court should be leery to interfere with its finding unless the Board has ignored evidence or reached a patently unreasonable finding. As stated by Noël J. (as he then was) in Ankrah v. Canada (M.E.I.), [1993] F.C.J.385:
This Court must be most careful not to substitute its decision for that of the Tribunal, especially where the decision is based on an assessment of credibility.
[15] On my reading of the transcript and focussing particularly on the 11 instances referred to by counsel, I cannot conclude that the Board erred in coming to its conclusion. While I might have reached a different conclusion on some of the points had I heard the evidence myself, I see nothing in the record that would suggest that the Board could not reasonably have come to the conclusion that it did.
[16] The applicant relied particularly on item number 5 from the above list. The relevant paragraph in the Board's decision refers to a 2001 State Department Report on Yemen and reads as follows:
Events prior to 1996 - According to the female claimant, she was always opposed to the lack of democracy in Yemen, the oppressive military and political police, and the government. At the University, between 1984 and 1987, and then between 1993 to 1996, she allegedly encountered opposition from the Islamic Brotherhood, which, she stated, is supported by the government. Documentary evidence states:
In December, the Government deported approximately 100 foreigners, many of whom were studying at Muslim religious schools, who allegedly were in the country illegally. The Government claimed that these persons were suspected of inciting violence or engaging in criminal acts by promoting religious extremism.
This clearly refutes the claimant's contention that the state supports Islamic extremism.
[17] The applicant has argued that the Board's consideration of country conditions in 2001 is irrelevant to the alleged threat which she experienced from the mid 1980s- mid 1990s. It seems to me that the Board, based upon all the evidence before it, including the 2001 report, had concluded that the applicant would not face a threat from Islamic extremists if she returned to Yemen. The Board's sentence "[t]his clearly refutes the claimant's contention that the state supports Islamic extremism" would, therefore, have been better phrased, i.e. "[t]his clearly refutes the claimant's contention that the state still supports Islamic extremism." However, the failure to explicitly state this underlying implicit time frame does not amount to a reviewable error.
[18] The application will, accordingly, be dismissed.
"K. von Finckenstein"
JUDGE
Ottawa, Ontario
October 14, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5955-02
STYLE OF CAUSE: MOHAMED (A.M.) ALHABOOB
NAJLA (A.) NOAMAN
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 7, 2003
REASONS FOR ORDER : von FINCKENSTEIN J.
DATED: OCTOBER 14, 2003
APPEARANCES:
Ms. Linda Martschenko FOR APPLICANTS
Ms. Bridget O'Leary FOR RESPONDENT
SOLICITORS OF RECORD:
Linda Martschenko FOR APPLICANTS
700-176 University Ave.
Windsor, ON N9A 5P1
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada