Ottawa, Ontario, March 10, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) of a decision (Decision) of the Convention Refugee Determination Division of the Immigration and Refugee Board (Board). On April 8, 2005, the Board found that the Applicant was not a Convention refugee pursuant to section 96 of the Act or a person in need of protection pursuant to section 97 of the Act.
ISSUES
[2] The Applicant raises the following issues:
1. Did the Board err in that it misunderstood parts of the evidence?
2. Did the Board err in that it disregarded evidence before it or made findings without evidence?
3. Did the Board err in that its findings of fact and implausibility were unreasonable?
BACKGROUND
[3] The Applicant was born on February 4, 1984 in the Jabalia Refugee Camp of the Gaza Strip, in the Occupied Territories. He and his family are UNRWA refugees.
[4] In June 2002, the Applicant claims that two of his friends were murdered by an unnamed group whose function is to uncover and eliminate persons who have collaborated with Israel. Two weeks later, his father called him and warned the Applicant to flee to his uncle's house in Khan Younis, approximately 20 kilometres away.
[5] The Applicant's father allegedly told him that an unidentified group of armed men had come to the family house looking for him because he had been listed as a collaborator. The Applicant remained in Khan Younis for the next two years. He kept a low profile but continued to receive visits from his parents. During this period, he claims that unknown persons repeatedly asked for him at his parent's house in the Jabalia Refugee Camp, thus prompting him to leave and seek asylum abroad.
[6] The Applicant left the Gaza Strip on September 19, 2004, and claimed refugee status upon arrival in Canada on September 20, 2004
DECISION
[7] In its reasons, the Board determined that there were numerous credibility and implausibility problems with the Applicant's claim.
[8] Specifically, the Board found that the following aspects of the Applicant's narrative were not credible or plausible:
(a) The Applicant's assertion that, in order to protect their reputation, the Palestinian Authority and groups such as Hamas and the Al-Aqsa Martyrs Brigade did not claim responsibility for the murder of collaborators;
(b) The Applicant's account that he noticed he was being watched after the deaths of his friends, and before he fled for Khan Younis, yet the armed men showed up at his parents' house when he wasn't home;
(c) The Applicant's allegation that the armed men waited about two weeks after the death of his friends before trying to apprehend the Applicant because they were conducting an investigation during that time;
(d) The assertion that the armed men identified themselves to the Applicant's parents as those who had murdered his friends, and their stating their intention to kill the Applicant, thus providing the Applicant's parents with a chance to warn him and advise him to escape;
(e) The account that the Applicant was able to flee the Jabalia Refugee Camp for Khan Younis by bus without being detected or experiencing any difficulty;
(f) Despite the fact that he was actively being sought by people who wanted to murder him, the account that the Applicant's parents visited him regularly in Khan Younis without being detected by the assassins;
(g) The account that the Applicant was able to cross the Egyptian border at Rafah using genuine Palestinian Authority travel documents without experiencing any difficulty.
[9] The Board also found the assertion (while his father unsuccessfully tried to establish his innocence in the Jabalia Refugee Camp) that the Applicant remained in Khan Younis for two years before fleeing cast doubt on his subjective fear of the militant group.
[10] The Applicant's parents testified by phone, and their testimony corroborated the Applicant's story. However, the board did not find the parents' testimony credible because it found that it contained similar implausible allegations.
[11] The Board chose to rely on documentary evidence stating that assassinations of suspected collaborators in the Occupied Territories are carried out publicly, and that responsibility for these assassinations is usually claimed by a vigilante group or the Palestinian Authority.
STANDARD OF REVIEW
[12] It has been well established that this Court cannot intervene in the Board's findings of fact and credibility in the absence of a patently unreasonable error. (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (FCA))
[13] In accordance with Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144, at paragraph 11, (T.D.), before a credibility finding of the Board is set aside, one of the following criteria must be established:
(a) The Board did not provide valid reasons for finding that an Applicant lacked credibility;
(b) The inferences drawn by the Board are based on implausibility findings that, in the view of the Court, are simply not convincing;
(c) The decision was based on inferences that are not supported by the evidence; or
(d) The credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
[14] Credibility findings of the Board are entitled to the highest degree of deference, and should only be set aside in accordance with the criteria set out above. With respect to credibility or plausibility, the Court should not substitute its opinion for that of the Board except in the "clearest of cases."
ANALYSIS
Misunderstanding the Evidence
[15] The Applicant claims that the Board misunderstood his evidence because he "did not say that he did know who the group was." He identified the group responsible as "a special group for fighting collaborators."
[16] However, my review of the Decision suggests to me that the Board did not doubt the Applicant's credibility because he could not give the vigilante group a name or a specific identity. The Board did not misunderstand the Applicant's evidence in this regard. The Board acknowledges what the Applicant says about being unable to give the group a name ("[I]t is not known exactly which group does what because there are different groups in the Occupied Territories such as Hamas"), but the Board did not find credible the Applicant's assertion concerning the reluctance of any such group to claim responsibility for the execution of collaborators or suspected collaborators:
Given that the claimant was simply unable to identify the people who allegedly murdered the brothers, the panel asked the claimant if his testimony was that no one took responsibility for the death of the two brothers. The claimant responded that the way it works in the Occupied Territories is that when one group is confronted about a murder, they automatically state that they are not responsible for the deaths and proceed to tell people to check whether other groups are responsible for the murders. He added that as an example, Hamas couldn't allow itself to ruin its reputation by taking responsibility for any death ... [H]is testimony was that no group is forthright in accepting responsibility for any death in the Occupied Territory.
[17] When the Board looked at the documentary evidence it looked for "any reference corroborating the claimant's assertion that groups, identified or unidentified, in the Occupied Territories shirk or shun responsibility for killing suspected collaborators or collaborators with Israel." In other words, it was the "responsibility" issue that troubled the Board, not the Applicant's inability to name the group involved in killing the brothers:
However, not only has the claimant been unable to point to any objective evidence to support his claim that unidentified groups or vigilantes shirk responsibility for killing suspected collaborators, the panel finds that the objective documentary evidence entered as exhibits in this claim overwhelmingly contradicts the claimant's allegation with respect to accepting responsibility about killing suspected and confirmed collaborators with Israel in the Occupied Territories. In fact, the groups or individuals (whether identified or not) publicly declare their role in the vast majority (if not all) of incidents of such killings. The documentary evidence details who committed the killings.
[18] The Board then goes on to examine the documentary evidence and comes to the following conclusions:
The panel finds that the documentary evidence establishes unquestionably that the treatment faced by collaborators and suspected collaborators with Israel at the hands of groups involved in the present intifida is carried out publicly, as a deterrent for other Palestinians contemplating working as spies for Israel. By and large, those who commit the crimes are not inhibited about claiming responsibility, particularly since the Palestinian Authority (PA) does not carry out investigations or make arrests as a result of the crimes committed.
Consequently, the panel finds that the objective documentary evidence establishes that the killing of suspected spies in the Occupied Territories is done openly and the groups responsible for the killings candidly admit their crimes. The panel finds that on a balance of probabilities, the claimant's allegation that no single group took responsibility for allegedly killing two suspected collaborators in Jabalia camp is not credible and leads the panel to find that the killings did not occur as alleged. The following analysis further supports this finding.
[19] So the only issue on this point is whether the Board's finding that "the objective documentary evidence establishes that the killing of suspected spies in the Occupied Territories is done openly and the groups responsible for the killings candidly admit their crimes" is patently unreasonable, given the objective documentary evidence before the Board.
[20] The Applicant says it was patently unreasonable because, even though not every group shuns responsibility, it really depends upon who is doing the killing. Not all killings are claimed.
[21] The Applicant points to a U.S. Department of State County Report for 2003 released in February, 2004, which, at page 24, points out that "Palestinian civilians also killed at least five Palestinians in the occupied territories who allegedly had collaborated with Israel. Most of the deaths were shootings perpetrated by small groups of unidentified Palestinian gunmen. The PA conducted no investigations and made no arrests in any of these killings."
[22] I do not believe that this reference assists the Applicant. He said the deaths were caused by a special group and not by "Palestinian civilians" who had formed a small group "of unidentified Palestinian gunmen." In his affidavit, the Applicant says he testified
... that the established groups which were playing a political role did not want to be linked to the killings and that when approached regarding killing them they would deny their role in targeting and killing specific collaborators.
[23] So the Applicant's evidence did not relate to "Palestinian civilians" in "small groups." In his own words, it related to "the established groups" who, the Applicant said, provided members to the "special group" because the established groups "did not want to be linked to the killings."
[24] The objective documentary evidence before the Board was that the "established groups" had no difficulty in claiming responsibility for killings. So the Applicant's evidence was not supported by the documentary evidence and the Board was not unreasonable in coming to the conclusions it did on this point.
[25] The Applicant points to various other implausibility issues that are evident in the rest of the Decision. I can certainly see that the Board made a mistake (e.g. over the bus issue) and may have misjudged other matters (e.g. the precise nature of the Applicant's personal friendship with the dead boys), but these matters are not, in my view, fatal to the Decision. The Board only mentioned them because it felt other factors supported its principal finding that "the killings did not occur as alleged." I do not believe that, had these mistakes been brought to the Board's attention, it would have made any difference to the decision. The central finding for the Board's Decision was that it could not believe the Applicant because the "special group" he feared would not, according to the documentary evidence, have hesitated to claim responsibility for the deaths of the two boys. The Applicant has not established that the Board's principal finding was patently unreasonable. This Court cannot intervene, re-weigh the evidence, and substitute its own opinion for that of the Board.
ORDER
THIS COURT ORDERS that
1. The Application is dismissed.
2. There is no question for certification.
Judge
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2431-05
STYLE OF CAUSE: MOUDHAT CHALAN
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING - OTTAWA, ONTARIO
DATE OF HEARING: DECEMBER 6, 2005
REASONS FOR ORDER
And ORDER: HONOURABLE MR. JUSTICE RUSSELL
DATED: March 10, 2006
APPEARANCES:
MS. SILVIA R. MACIUNAS FOR THE APPLICANT
MS. TATIANA SANDLER FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
MS. SILVIA R. MACIUNAS FOR THE APPLICANT
BARRISTER AND SOLICITOR
OTTAWA, ONTARIO
MR. JOHN H. SIMS, Q.C.
ATTORNEY GENERAL OF CANADA FOR THE RESPONDENT