Date: 20030523
Docket: IMM-2016-02
Neutral Citation: 2003 FCT 623
Between:
Mohamed Hussein BEN SHAIKH
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Board"), dated April 24, 2002, determining him not to be a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
The applicant is a citizen of Libya. His refugee claim is based on a fear of persecution from Libyan authorities for having given financial aid to the families of arrested Libyan citizens.
The Board refused the applicant's application, on the grounds that he lacked credibility.
In questions of credibility, this Court cannot substitute its opinion for that of the Board unless the applicant can demonstrate that the Board's decision was based on an erroneous finding of fact that it made in a capricious manner or without regard for the material before it (subsection 18.1(4) of the Federal Court Act, R.S.C. 1985, c. F-7). It has been established that the Board is a specialised tribunal capable of assessing the plausibility and credibility of a testimony, to the extent that the inferences which it draws from it are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and its reasons are expressed clearly and comprehensibly (Hilo v. Canada (M.E.I.) (1991), 130 N.R. 236 (F.C.A.)). Finally, as the Federal Court of Appeal stated in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 at 244, a tribunal's perception that a claimant is not credible with respect to a material element of his or her claim for refugee status effectively amounts to a finding that there is no credible evidence for that claim.
In the case at bar, I find that the Board erred with regard to certain perceived contradictions and omissions in the evidence. The first such contradiction was that the applicant testified that he imported clothing and automobiles to Libya, but he had not mentioned this fact in his Personal Information Form ("PIF"), stating instead that he imported sundries and groceries. In fact, the applicant did state twice in his PIF that he imported automobiles. It is clear from a reading of the PIF that when he used the term "groceries and sundries", he was describing the goods he imported during the first few years of his business, after which he adapted to market demands and imported goods that were difficult to obtain inside Libya. The applicant described the nature of his import business and his need to travel abroad to sustain it. That he did not mention clothing in particular as part of his inventory is not central to his claim of persecution, and, therefore, it did not have to be included in his PIF (Sanchez v. Minister of Citizenship and Immigration (March 28, 2000), IMM-2631-99 (F.C.T.D.), Basseghi v. Minister of Citizenship and Immigration (December 6, 1994), IMM-227-94 (F.C.T.D.) and Grinevich v. Minister of Citizenship and Immigration (April 11, 1997), IMM-1773-96 (F.C.T.D.)).
The second perceived contradiction is that the applicant originally testified that his address book was taken from him when he was arrested, and then later stated that his family found the book after he was arrested and destroyed it. In fact, the applicant did not contradict himself. Rather, the Board did not pay attention to what he said and later argued vehemently with him over the point, as is shown in an excerpt from the transcript of the hearing:
PRESIDING MEMBER: How did you locate [Fawzi and Adel] when you were in Germany if you didn't have their phone number?
A No, in Germany, when I was in Germany, I had their number and of course before I left Germany, I went to the home of Fawzi.
PRESIDING MEMBER: Okay, well, if you had their number in Germany, what happened to it? Why don't you still have it?
A As I had mentioned to you, I was imprisoned, and when I was imprisoned, I don't even know where my calendar, my diary or my address book is.
* * * * * *
PRESIDING MEMBER: So you said earlier that you couldn't reach Fawzel (phonetic) and Adel - Fawzi and Adel because when you were arrested, they took your address book and so you lost their phone number.
A No, I didn't say that they have taken my diary.
PRESIDING MEMBER: Yes, you did. [...] You said, "I had their number in Germany. I visited them before I left Germany the last time. They took my calendar and diary and address book when I was imprisoned." So why did you say that if they didn't take it?
A The last time in May of 2000, I didn't have the number for Fawzi. I had kept it.
PRESIDING MEMBER: The question I am asking you is why you are saying now that you were not -that the authorities did not seize your diary and your address book when not more than ten minutes ago, you said that they did. I just want you to explain that.
A The address book was torn at the house. It's not the government.
PRESIDING MEMBER: Your address book was stolen from your house?
INTERPRETER: Torn.
PRESIDING MEMBER: Torn?
A Yeah, my family.
PRESIDING MEMBER: Well, why did you say earlier it was taken from you when you were imprisoned?
A Maybe you don't understand me.
(The emphasis is mine.)
The Board also mentions repeatedly that the applicant did not state in his PIF that his family members took it upon themselves to search his room and destroy his address book, and that this omission is problematic. However, this was not a material element of his claim and did not need to be included in the PIF.
The third irregularity perceived by the Board was that the applicant testified to having met the students in Germany, having coffee with them and meeting with them several times, yet he only mentioned them late in his PIF. In finding fault with the applicant on such a minor point, the Board is being unreasonable. The applicant states at paragraph 16 of his PIF that he explained to his interrogators that he had an association with some students in Germany, and that the interrogators replied that they knew about the students. Furthermore, he did not testify that he met several times with them, but rather that he saw them when he was out in a café with Fawzi and Adel.
I also find that the Board erred with regard to its implausibility findings. Although it is sometimes easier to discern errors with respect to implausibility, the same standard applies as for credibility findings (see Aguebor, supra).
The first implausibility which the Board raised was that the applicant would donate money to strangers before giving financial assistance to people he knew. The applicant clearly explained in his testimony the Libyan practice of sadaqa, or almsgiving, and there was no evidence to refute this practice. I would probably have reached a different conclusion on this point, however, I do not think the Board's finding was necessarily unreasonable.
The second implausibility was that the applicant was able to retrieve his passport from the Libyan authorities after they had confiscated it. The Board based its finding on the character of the Libyan authorities and their complete disregard for human rights and people's individual needs. However, there was substantial evidence before the Board of the corruption which is rampant in the Libyan government and government departments, and which would explain the applicant's ability to obtain his passport through government contacts, as he testified. The Board's finding on this point was unreasonable and in contradiction to the evidence before it.
The third implausibility was that the applicant would exit Libya through Tunis to Canada instead of exiting through Europe, since he would have had no trouble obtaining a visa to Germany or Italy based on previous travel. Although I may have decided differently on this point, the Board's finding cannot be said to be unreasonable.
The fourth implausibility is that the applicant had an intermediary renew his driver's licence retroactively after he got out of prison. The Board clearly was not paying attention to the applicant's evidence on this point, as it appears from an excerpt from its reasons, at page 5:
. . . Why would you need an intermediary licence? Why would you need to renew this either from jail or once released from jail? Furthermore, the driver's licence expired in 1999 and yet you renewed it and had it backdated to June of 2000, when you were released, not 1999 when it had expired. I found your answer to these questions nonsensical.
In fact, the applicant testified that he used an intermediary to renew his licence, not that he needed an intermediary licence, and that he had to use an intermediary because there are obstacles when renewing licences in Libya. He also stated that he did not know why his maternal uncle, the intermediary, had the licence backdated to June 2000. He did not state that he himself had it backdated.
Finally, the applicant takes issue with the Board's use of the country name "Iraq"instead of "Libya" on the last two pages of its decision, and states that this is a further indication of the Board's confusion. The respondent invites the Court to remember that the decision was given orally, and that the error is minor. The decision was given orally, however, it was thereafter proofread by the Board and issued in written form. Although the use of "Iraq" instead of "Libya" may not be a defining error in itself, when added to the rest of the Board's mistakes it serves to underline the general carelessness and lack of attention with which the Board approached this application.
A thorough review of the Board's decision and the transcript of the hearing reveals several specific errors on the Board's part as well as a general irresponsible approach to the hearing. The Board's finding of lack of credibility was reached in an unreasonable manner. The Board's statement that the applicant was at times quite evasive should not be used to expunge its mistakes. It is difficult to interfere with a Board's finding that an applicant has been evasive. However, there is no indication on the record that the applicant was avoiding questions. Although the Board did sometimes have to repeat questions, the applicant usually answered fully, except in those cases where the Board was presenting him with nonexistent contradictions in his testimony and asking him to explain himself. The applicant was at those times understandably confused.
In this case, I would echo the words of Pelletier J., as he then was, in Haji v. Canada (M.C.I.) (2000), 192 F.T.R. 141, at page 144:
[14] In my view, this is to the same effect as the passages quoted from Miranda that not every error is grounds for setting aside a decision. But in this case, the errors are numerous and their cumulative effect is unknown. There comes a point at which the sheer number of errors, whether material or not, leaves one with little confidence in the soundness of the other conclusions reached by the Tribunal. It is clear that the CRDD based its decision on findings of fact made without regard to the material before it. For that reason, the decision must be set aside and the matter remitted to another panel for determination.
For the reasons given above, the application for judicial review is granted and the matter returned for a new hearing before a differently constituted panel.
JUDGE
OTTAWA, ONTARIO
May 23, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2016-02
STYLE OF CAUSE: Mohamed Hussein BEN SHAIKH v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 22, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: May 23, 2003
APPEARANCES:
Martin Bauer FOR THE APPLICANT
Pauline Anthoine FOR THE RESPONDENT
SOLICITORS OF RECORD:
Hobson & Company FOR THE APPLICANT
Vancouver, British Columbia
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario