Date: 20050609
Docket: IMM-6450-04
Citation: 2005 FC 828
Toronto, Ontario, June 9th, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
SENAN DAOUD
( a.k.a. SENAN MOHAMMAD DAOUD)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Senan Daoud is a 40-year-old Palestinian from Jenin in the West Bank. He sought judicial review of the decision of the Refugee Protection Division (the "Board"), dated June 22, 2004 that held he was not a Convention refugee nor a person in need of protection. These are my reasons for concluding that the application must be granted and the matter remitted to the Board for a fresh determination.
[2] Mr. Daoud claimed that he was perceived to be an Israeli collaborator. He worked for an Internet café in Jenin as a manager and provided technical assistance to customers. One of his clients was a woman named Mona. Mona was seized by Palestinian militants who suspected her of working for the Israelis. He claims she gave them his name while being interrogated. Three gunmen then came to the café and assaulted him. As a result he feared for his life and went into hiding until he could arrange to travel to Jordan in March 2003 and from there to the U.S.. He attempted to get a visitor's visa for Canada, but was denied. He then came to Canada on July 3, 2003 and claimed refugee protection at the border.
[3] Mr. Daoud travelled using a Jordanian passport, but it is clear from the evidence that he has no right to live there.
[4] The Board found that Mr. Daoud's story was not credible. It found that there were inconsistencies between the Port of Entry ("POE") notes, Mr. Daoud's Personal Information Form ("PIF"), and oral testimony, and that the story was not plausible.
ISSUES
[5] 1. Did the Board err in finding that Mr. Daoud could return to Jordan?
2. Did the Board err with respect to credibility?
3. Did the Board err in finding that there is adequate state protection for Mr. Daoud?
ARGUMENT & ANALYSIS
1. Return to Jordan
[6] In his written submissions, the applicant submits that the Board erred by repeatedly referring to Jordan as a place to which he could be returned without fear of persecution. The applicant's claim was only against Palestine, and the evidence was unequivocal that he had no right of return to Jordan, although the Board made a finding that he did. The Board erred in this respect by giving inadequate reasons, the applicant submits, as there was no analysis of the country of reference issue.
[7] This issue was not pressed in oral argument. I would not find that the Board made a reversible error in referring to Jordan as Mr. Daoud travelled with a Jordanian passport and had transited Jordan to reach the United States and from there, Canada. Should he be removed from this country, presumably it would be first to the United States and from there to Jordan. It was appropriate for the Board to consider whether he had any real fear of persecution in that country. However, his Jordanian passport gives him no rights as a national and, again, presumably, if he is returned there, his stay would be short-lived.
2. Credibility
[8] The Board made several findings of inconsistencies and implausibilities in Mr. Daoud's story that are not, in my view, supported by the evidence. Some are inconsequential but contribute to an overall impression that the Board was not quite understanding the evidence.
[9] The Board found inconsistencies between the POE immigration officer's notes and Mr. Daoud's testimony to support its credibility determination. Notes of interviews conducted at the first opportunity a refugee claimant has to present his story in Canada may well support a finding of a lack of credibility if shown to be inconsistent with the applicant's subsequent accounts in the PIF or oral testimony.
[10] In this case the officer's notes of the POE interview do not support the Board's findings. It is apparent from reading them as a whole that the question of whether Mr. Daoud could seek protection in Jordan was clarified in the course of the interview. Moreover, a reference to Mona being tortured by the Israelis rather than by Palestinian militants is patently an error by the officer as indicated by the context in which it is found.
[11] Mr. Daoud testified that he did not make some of the statements attributed to him by the officer in the POE notes. For example, he did not describe Mona as his "girlfriend". He stated that the Arabic interpreter at the interview spoke with a heavy Sudanese accent that he had difficulty understanding, an explanation that seems reasonable. Mis-communication can easily occur in the same language with differences in dialects and accents. The Board discounted this explanation, a finding that was open to it, but erred, in my view, in accepting the officer's notes at face value to find inconsistencies that are not supported by the evidence as a whole.
[12] The transcript of the hearing indicates that the member raised irrelevancies such as whether Mona was attractive or not. Mr. Daoud's evidence was clear that this was a business relationship rather than a personal one.
[13] The Board found a contradiction with regard to how the interrogators got Mona's name:
He testified that they were not seen together at any time outside the café, as they were not permitted socially to go out. Given the professional relationship, the claimant was questioned by the panel as to why his name would be given by Mona to Palestinian militants given their arm's length relationship. In response, the claimant testified initially that the militants knew of his name through Mona's disclosure as a collaborator, and then he contradicted earlier testimony stating that perhaps the militants got his name and phone number from a cell phone.
At the hearing, Mr. Daoud was invited by the Board to speculate about what his interrogators thought and how they had gotten his name. He could only relate what he was told. His answers are not a contradiction, but two possible speculative alternatives that are not mutually exclusive.
[14] The Board found that it was implausible that Mona would have Mr. Daoud's business number on her cell phone. He was not asked why Mona had his number on her cell phone. He did testify that Mona had a computer at home and would call the café to seek assistance with questions about its operation. She would come to the café several times a week to access the Internet, as the cost of the service at home was much higher. It was not a reasonable inference that Mona would not have had his work number on her cell phone.
[15] The Board made the following comments about the basis of the applicant's claim:
The panel asked the claimant why he would be sought now as he was unable to provide any information to the Palestinian Authority or Palestinian militants. The claimant responded that the militants and the Palestinian Authority would be inquiring again, and alleges that they did in fact inquire again regarding his whereabouts with his family. In light of the claimant's inability to provide information to those people allegedly pursuing him, and in the absence of credible or trustworthy evidence that he is actually being sought, the panel finds the claimant's testimony in this regard not credible. [emphasis added]
The inability of a person claiming persecution on the basis of perceived political opinion to tell his torturers what they want to hear should not be held against him in a claim for protection. There was also no evidence before the Board that contradicted Mr. Daoud's account.
[16] The Board states that Mr. Daoud testified that he did not seek medical attention after he was attacked by the three gunmen and relies on that as the basis for an adverse credibility finding. While the Board may have drawn an inference from his testimony that he did not seek medical attention because he immediately went into hiding following the incident, the question was not put to him during the hearing. There does not appear to have been any discussion about medical treatment. The Board's finding is not based on the evidence.
3. State protection
[17] Mr. Daoud submits that the Board erred in concluding that he had not led evidence that established that he was in danger as a perceived Israeli collaborator. Aside from his own evidence, there was reliable and explicit corroboration in the state documents package in the United States Department of State Report, 2003 and the Human Rights Watch World Report, 2003. The Refugee Protection Officer at the hearing agreed that suspected spies would be dealt with severely either by the Palestinian Authority or its vigilante supporters. Certainly, Mr. Daoud could not turn to the Israelis without confirming suspicion that he was a collaborator. The Board did not address this evidence at all and thus made a reviewable error: Bains v. Canada (Minister of Citizenship and Immigration) (1993), 63 F.T.R. 312 (T.D.); Dirie v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 1 (T.D.).
[18] The respondent submits that it is not necessary to look at the documentary evidence when the very basis of the claim is unsupported by credible testimony: Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (F.C.A.) at paras. 8-9.
[19] The respondent is correct that if there is no subjective basis found for a claim, there is no need to examine the objective basis. However, it is preferable for the Board to do a complete analysis so that in the event that it has been found to have erred on one branch of the test, the decision may still be upheld.
[20] The Board's sole reference to an objective fear analysis is found in the context of a credibility finding:
The claimant provided no newspaper articles or letters to support his belief of no state protection. The panel finds that the claimant is speculating and in the absence of credible and trustworthy evidence the panel finds that the claimant is not credible with regard to why he did not seek medical attention or police protection.
This statement is directly at odds with the documentary evidence. I also find it disturbing that the Board condemns Mr. Daoud's "speculation" here but relied upon it in making other negative credibility findings.
[21] Overall, I am satisfied that the decision as a whole is patently unreasonable and must be overturned. No question of general importance was proposed and none is certified.
ORDER
THIS COURT ORDERS that this application is granted. The matter is referred back to a differently constituted panel of the Refugee Protection Board for redetermination. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6450-04
STYLE OF CAUSE: SENAN DAOUD
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: JUNE 8, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER: MOSLEY J.
DATED: JUNE 9, 2005
APPEARANCES BY:
Geraldine MacDonald FOR THE APPLICANT
Anshumal Juyal FOR THE RESPONDENT
SOLICITORS OF RECORD:
Geraldine MacDonald
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT