Date: 20030220
Docket: IMM-2513-01
Neutral citation: 2003 FCT 207
Toronto, Ontario, Thursday, the 20th day of February, 2003
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
JOSEPH LOTFE AKLADUOS SHENODA
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated May 1, 2001, wherein the CRDD determined that the Applicant is not a Convention refugee.
[2] The Applicant is a citizen of Egypt. He claims a well-founded fear of persecution based on his religion as a member of the Coptic denomination of Christianity.
[3] In his PIF and testimony, the Applicant recounted numerous incidents of persecution that he had suffered at the hands of Islamic fundamentalists, especially members of the Gaamat Islamia. The Applicant claimed to be closely associated and actively involved with his Church. He referred specifically to an incident involving a friend, Adel, who was subject to forced conversion to Islam by his employer, a member of the Gaamat Islamia. When the Applicant attempted to protect his friend, by arranging to have some money paid on his behalf, he was accused of being responsible for Adel leaving Islam, and would be punished. The Applicant was beaten by the Gaamat Islamia members, and subsequently went into hiding. After having the Gaamat Islamia search for him for six months while he remained in hiding, the Applicant fled to Canada in July 1999. He filed his refugee claim ten days after arrival.
[4] I am satisfied that the CRDD's decision with respect to the Applicant's claim of persecution is based on a fundamental misunderstanding of the Applicant's evidence, and therefore, it is patently unreasonable.
[5] From a close reading of the transcript of the evidence given before the CRDD, the following essentials of the Applicant's claim are apparent:
1. The Applicant became drawn into what is essentially an extortion attempt by a man named Khalaf, a Muslim extremist, who was also Adel's employer.
2. The extortion involved creating a belief that Adel had converted to Islam when, in fact, such did not occur through the traditions of the Islamic faith.
3. If Adel did not comply with Khalaf's demands within the extortion attempt, Khalaf intended to have Adel publicly labelled as an apostate, and as a result, he would be severely punished.
[6] The Applicant's evidence with respect to what transpired between Adel and Khalaf was disbelieved by the CRDD based on discreet implausibility findings. In this respect, the CRDD found as follows:
In the panel's view, it does not make sense that Adel, a Christian, chose to work for a company owned by an overtly and visibly Muslim fundamentalist, complete with a beard and flowing white garb, considering that the extreme tactics of the fundamentalists are well known and well publicized in Egypt. Nor is it plausible that the claimant, who was Adel's friend, would first choose to go to Adel's evidently Muslim work place to ask him about his church activities, rather than go directly to the privacy of Adel's home.
What is simply not plausible is that Khalaf would accuse Adel of "leaving Islam" and being an apostate, when Adel had never even converted to Islam. Nor is it believable that the claimant, who was even further removed from the situation, would also be considered to be an apostate, because he allegedly helped Adel leave a religion that Adel had never accepted in the first place.
(Decision, p. 3)
[7] With respect to plausibility findings generally, the law is clear as stated by Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1131, at paragraphs 6 to 9 as follows:
Presumption of Truth and Plausibility
The tribunal adverts to the principle from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305, that when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness. But the tribunal does not apply the Maldonado principle to this applicant, and repeatedly disregards his testimony, holding that much of it appears to it to be implausible. Additionally, the tribunal often substitutes its own version of events without evidence to support its conclusions.
A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu. [see L. Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992) at 8.22]
In Leung v. M.E.I. (1994), 81 F.T.R. 303 (T.D.), Associate Chief Justice Jerome stated at page 307:
...Nevertheless, the Board is under a very clear duty to justify its credibility findings with specific and clear reference to the evidence.
This duty becomes particularly important in cases such as this one where the Board has based its non-credibility finding on perceived "implausibilities" in the claimants' stories rather than on internal inconsistencies and contradictions in their narratives or their demeanour while testifying. Findings of implausibility are inherently subjective assessments which are largely dependant on the individual Board member's perceptions of what constitutes rational behaviour. The appropriateness of a particular finding can therefore only be assessed if the Board's decision clearly identifies all of the facts which form the basis for their conclusions. The Board will therefore err when it fails to refer to relevant evidence which could potentially refute their conclusions of implausibility...
In Bains v. M.E.I. (1993), 63 F.T.R. 312 (T.D.) at 314, Mr. Justice Cullen quashed a decision of the tribunal after concluding that it erred because its plausibility findings were made without referring to the documentary evidence, and because they were made based on Canadian paradigms:
... However, in making a finding of what was plausible or implausible the Refugee Division made no reference to the documentary evidence filed in support of the applicant, namely the Amnesty International reports. According to the reports, the events described by the applicant were not an unusual occurrence and constant harassment of members or former members of Akali Dal was the norm, not the exception. Therefore, in my view, the failure to comment on the evidence filed, either in a negative or positive manner, seriously weakened the Refugee Division's decision and conclusions. Further, the applicant's contention is wholly consistent with the documentary evidence filed and is probably the only source of evidence sustaining the applicant's case; or is the only clue to determining if the applicant's evidence is plausible. This documentary evidence was the only gauge available regarding the conduct of authorities in Indian vis-à-vis Sikhs and the reports referred to these occurrences as "routine".
Moreover, the events as described by the applicant may have seemed implausible and therefore not credible to the Refugee Division, but as counsel for the applicant points out "Canadian paradigms do not apply in India". Torture, unhappily, is real, as is exploitation and revenge, often resulting in killings.
[8] I am satisfied that, on a perusal of the transcript, the CRDD's concerns resulting in the implausibility findings in the first paragraph of the CRDD's decision quoted above were fully answered by the Applicant in his testimony. As a result, since the CRDD does not supply any other evidence to substantiate the implausibility findings made, I find they are unsubstantiated, and, therefore, are erroneous.
[9] With respect to the elements of the extortion attempt by Khalaf, there is no question that Adel had not converted to the Muslim religion according to the traditions of that faith. All that was necessary for Khalaf to complete on the extortion attempt was to create a belief that this had occurred. I am satisfied that the CRDD's concern that Adel had not, in fact, converted to the Muslim faith according to the traditions played heavily in the impugning of the Applicant's credibility. I find that the reliance placed on this irrelevant consideration constitutes a reviewable error.
[10] In my opinion, taken together, the errors made in reaching the implausibility findings addressed above render the decision as patently unreasonable.
ORDER
Accordingly, the CRDD's is set aside and the matter is referred back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2513-01
STYLE OF CAUSE: JOSEPH LOTFE AKLADUOS SHENODA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, FEBRUARY 19, 2003
REASONS FOR ORDER
AND ORDER BY: CAMPBELL, J.
DATED: THURSDAY, FEBRUARY 20, 2003
APPEARANCES BY: Mr. Harvey Savage
For the Applicant
Ms. Neeta Logsetty
For the Respondent
SOLICITORS OF RECORD: Harvey Savage
Barrister & Solicitor
393 University Avenue
Suite 2000
Toronto, Ontario
M5G 1E6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030220
Docket: IMM-2513-01
BETWEEN:
JOSEPH LOTFE AKLADUOS SHENODA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER