Date: 20030417
Docket: IMM-2059-02
Citation: 2003 FCT 455
OTTAWA, ONTARIO, THIS 17th DAY OF APRIL, 2003
PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
ABUBAKAR YASSIN
AKBER YASSIN
IBTISAM (IBISTAN) KHERI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants ask for judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"), dated April 3, 2002, wherein the Board determined that the applicants were not considered Convention refugees according to subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
[2] The applicants are citizens of Tanzania. The principal applicant claims refugee status based on his perceived political opinion. He alleges being an active member of the Civic United Front (the "CUF"), which is considered to be the opposition party in Tanzania. The female applicant and the child applicants claim to have a well-founded fear of persecution by reason of their membership to a particular social group, namely family.
[3] During the hearing, the principal applicant testified that he was a member of the CUF since September 10, 1994. He stated that after an interrogation in 1995 he became less active in the party and had no further difficulties associated with his political activities until March 6, 2000. He submitted that on that date he was arrested by the police with a group of other people and detained for one week in a small cell. He stated that he was never charged with any crime and that the people who had no affiliation with CUF were released, but he and other CUF members were detained. During this detention he was allegedly starved and had only water to drink. He was only released when his wife posted bail. The authorities started looking for him shortly after he went to Dar-Es-Salaam for business a few days after his release. They visited his wife at their house on March 15, 16 and 18, 2000. She stated that on the last visit the authorities intimidated and terrorized both her and the minor applicant. Following these incidents they went to see a lawyer who apparently advised them that they should leave the country. The principal applicant then made arrangements for him and his family to leave, which they did on May 5, 2000.
[4] The Board determined that the applicants were not Convention refugees. It prefaced its reasoning by these general conclusions:
...The panel has valid reason to doubt and reject the truthfulness that arose in the claimants' evidence. These allegations do not meet the real test of the truth of a story of a witness that it be in harmony with the preponderance of the probabilities which a practical and informed person would recognize as reasonable in that place and in those conditions. In addition, the panel has valid reason to doubt that the authorities are interested in any of these claimants. Further the panel has valid reason to believe that the claimants' fear is not well founded objectively because of evidence that shows CUF members are no longer being persecuted in Tanzania.
[5] The credibility of the two adult applicants was the determining factor in the Board's decision. It doubted that the authorities were interested in the applicants. In clear and unmistakable terms, the Board indicated why it found the applicants' story not plausible:
· The Board did not find it plausible that the principal applicant would be able to carry on his normal activities, including a business trip to Dar-Es-Salaam a mere two days following his release from prison. The Board noted that the applicant received minimal medical care following his week in detention during which time he suffered from starvation and water deprivation;
· The Board did not believe the principal applicant's evidence that he attended at the CUF offices a mere two days following his release from custody. In making this finding, the Board noted that the principal applicant had been released upon the condition that he would not get involved in politics and that the police would be "keeping an eye on him" with a view toward rearrest;
· The Board attributed little weight to the letter provided by the CUF's office in support of his allegation regarding his detention. It was noted that the CUF officer indicated that the principal applicant had suffered "severe physical and psychological torture" while in custody and further that the principal applicant had attended their office several times since his release to report harassment, intimidation and police raids since his release. None of this evidence was substantiated by the principal applicant and therefore, the Board gave the letter little weight;
· The Board did not believe that the authorities would keep the principal applicant in custody for a week, without interrogating him, only to determine a few days after his release that they did in fact want him back in custody such that they would return three times to his home to try to find him;
· There was no evidence to support the applicants' allegations that the principal applicant, "an ordinary member of the CUF", would have any information that would be of interest to the authorities such that they [the authorities] would actively seek to rearrest the principal applicant so soon after his release;
· The Board did not find the authorities' three visits to the applicants' home as described by the female applicant to be credible, noting it was not credible that on the first visit the authorities would fail to ask where specifically the principal applicant was;
· The Board did not find it credible that the authorities would not have arrested the female applicant during their visits given her allegation that she was accused of trying to overthrow the government and/or because she signed the principal applicant's bail document, which restricted his travelling outside Tanzania. While the Board acknowledges that the principal applicant was not technically outside Tanzania, the authorities were not made aware of this fact until the third visit;
· Given the seriousness of the charges alleged (overthrowing the government), the Board found it to be implausible that the authorities would not have found the CUF documents hidden in the applicants' home when it was searched;
· The Board did not find the contents of the letter from the principal applicant's lawyer, Mr. Nkuhi, to be credible. In this regard, the Board noted that the letter referred to civil charges against the police and did not deal with the principal applicant's criminal charges nor did the Board believe the lawyer would advise the applicants to leave the country after meeting the principal applicant only on one occasion. Consequently, the Board also attributed little weight to this letter;
· The female applicant indicated that she did not have further problems with the police following the last visit on March 18, 2000. The Board did not believe that the authorities would simply stop their investigation and further, if they had, the Board found this to be an indication that neither the female applicant nor the child had any reason to fear the authorities;
· The Board did not believe that the female applicant would be able to leave from the Zanzibar airport using her own documentation if she was truly wanted by the authorities;
[6] Given the above, the Board did not believe that the principal applicant was arrested on March 6, 2000 nor did it believe that he spent any time in detention. Furthermore, the Board did not believe the authorities were interested in the applicants, as alleged, and consequently, did not believe that they had attended at the applicants' home on March 15, 16, and 18, 2000. In fact, the Board believed that the applicants came to Canada for economic reasons.
[7] The determination of an applicant's credibility is the heartland of the Board's jurisdiction. This Court has found that the Board has a well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant (Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at para. 38 (F.C.T.D.); and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at para. 14).
[8] Moreover, it has been recognized and confirmed that, with respect to credibility and assessment of evidence, this Court may not substitute its decision for that of the Board when the applicant has failed to prove that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at para. 14 (F.C.T.D.) ("Akinlolu"); Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124 at para. 9 (F.C.T.D.) ("Kanyai"); and the grounds for review set out in paragraph 18.1(4)(d) of the Federal Court Act).
[9] Normally, the Board is entitled to conclude that an applicant is not credible because of implausibilities in his or her evidence as long as its inferences are not unreasonable and its reasons are set out in "clear and unmistakable terms" (Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.); Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.) ("Aguebor"); Zhou v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1087 (F.C.A.); and Kanyai, supra, at para. 10).
[10] Furthermore, the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality (Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 at para. 2 (F.C.A.); and Aguebor, supra, at para. 4). The Board may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence (Akinlolu, supra, at para. 13; and Kanyai, supra, at para. 11).
[11] In the case at bar, the implausibility findings enumerated above are not in my opinion unreasonable and were not made in a perverse or capricious manner or without regard for the material before the Board. These implausibilities relate to material facts that led to the applicants' claim of a well-founded fear of persecution and not to minor or peripheral inconsistencies in the applicants' evidence. Despite the able efforts made at the hearing by the applicants' counsel, I conclude that the adverse credibility findings were reasonably open to the Board and were based on the evidence. Many of the implausibility conclusions made by the Board were based upon common sense which it is permitted to do. Moreover, the Board seemed to have adequately relied on the documents before it and there is a presumption that it considered the entirety of the evidence. In view of the conclusion I have reached with respect to the credibility issue, it is unnecessary to analyse the other issues raised by the applicants, which would not change the result of the Board's decision to reject the applicants' refugee claims. Counsel agree that there is no question of general importance to be certified in this case.
ORDER
THIS COURT ORDERS that the application for judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division, dated April 3, 2002, wherein the Board determined that the applicants were not considered Convention refugees, according to subsection 2(1) of the Immigration Act, be dismissed. No question of general importance will be certified.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: IMM-2059-02
STYLE OF CAUSE: Abubakar Yassin and others v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 1, 2003
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: April 17, 2003
APPEARANCES:
Mr. Jack Martinfor the Applicants
Mr. Martin Andersonfor the Respondent
SOLICITORS ON THE RECORD:
Mr. Jack Martinfor the Applicants
Toronto, Ontario
Mr. Morris Rosenbergfor the Respondent
Deputy Attorney General of Canada