Date: 20030310
Docket: IMM-21-02
Neutral Citation: 2003 FCT 291
Ottawa, Ontario, the 10th day of March 2003
PRESENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
HATEM BEN TAHAR BEN OMRANE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision dated December 12, 2001, in which the Refugee Division of the Immigration and Refugee Board (the IRB) ruled that the applicant is not a Convention refugee.
THE FACTS
[2] The applicant is a 28-year-old national of Tunisia who alleges that he has a well-founded fear of persecution because of his perceived political opinions. Before leaving his country, the applicant was a student in the second year of law at the University of Tunis. His claim is based on the following facts.
[3] On April 26, 2000, the applicant and a dozen or so students gathered in front of the home of Ben Brik, a journalist, to support the latter's hunger strike. They demonstrated against the prohibition on leaving the country that had been imposed on Mr. Brik. The applicant was arrested by the authorities and taken to the police station where he was questioned concerning his political opinions. He alleges as well that he was manhandled.
[4] The applicant was then transferred to a detention centre where the hygienic conditions were healthy. He was held for two days and mistreated.
[5] The applicant says he was prevented from writing his final examinations in May, and that when he reported to the university, a secret agent prohibited him from entering the university and confiscated his student card.
[6] Toward the middle of June 2000, the authorities shut down the business belonging to the applicant's mother on the pretext that the safety and health rules were not being observed. The applicant reacted to the insults directed at his mother and was taken to the police station where he says he was beaten. In the evening, the applicant was released thanks to the intervention of his brother-in-law, who is a physician known to the local authorities.
[7] The applicant left Tunisia on August 11, 2000, with a tour group organized in January 2000. Taking advantage of this trip, the applicant chose not to return to his country.
IRB DECISION
[8] The IRB granted no credence to the applicant's testimony and thought he had invented a story in support of his claim. The IRB therefore concluded that the applicant had no credibility, basing this conclusion on the following observations in particular:
- the applicant was unable to give the date of the police intervention at his mother's business, or the name of the business;
- the applicant was unable to explain how his brother-in-law could help him only at the local level, while as a physician he reports to the justice or interior ministries.
- the applicant's testimony that he was unable to report for his examinations in May 2000 at the law faculty is contradicted by a "certificate of attendance" at his examinations, a document submitted to the Canadian Embassy when he applied for his tourist visa;
- the applicant claims he was not interrogated at the police station in June 2000, but only insulted and mistreated, nor were there any conditions on his release;
- the applicant had no problem crossing his country's border, although he alleges being persecuted and sought by the Tunisian authorities.
ISSUE
[9] Did the IRB patently err in drawing conclusions made in a perverse or capricious manner or without regard for the evidence?
ANALYSIS
[10] The applicant submits that the following four findings of the IRB were made in a perverse or capricious manner and constitute a patently unreasonable error, in that:
- the IRB failed to consider the applicant's testimony concerning his problems in remembering dates and the fact that small businesses in Tunisia do not have business names as a rule;
- the IRB failed to consider the applicant's explanations that his brother-in-law, a physician known to the local authorities, could intervene in his favour with them but without having any influence whatsoever with the authorities of the departments of Justice and the Interior;
- the IRB failed to consider the evidence submitted by the immigration officer showing that the applicant's visa application was not signed by the applicant himself, thus confirming the applicant's testimony that his tourist visa file was under the control of the travel agency and that the documents submitted in support of it were presented by this travel agency without the participation of the applicant;
- the IRB failed to consider the applicant's explanation that he could leave Tunisia by signing up with an organized group tour, enabling him to avoid the usual controls and facilitating his departure from Tunisian territory.
[11] In my opinion, all of these arguments concerning the applicant's credibility go to the assessment of the evidence and the facts. The IRB based its decision on the evidence on the record and interpreted it as it understood it. Contrary to the applicant's allegations, the IRB did not fail to consider the explanations he gave, but was simply not persuaded by or satisfied with them. Given the great deference that the Court must display in relation to a question of fact addressed in the assessment of the evidence, it is not the Court's duty to substitute its interpretation for that of the IRB.
[12] I would add that the applicant's credibility was seriously undermined when it was demonstrated, with supporting documentation, that he had indeed been present at his law examinations in May 2000 at the University of Tunis. The explanations given to contradict the documentation from the University of Tunis were not credible. Furthermore, the applicant's credibility was again persuasively attacked when he was unable to recall the date when his mother's business was shut down and when he minimized the influence of his physician brother-in-law at the regional level when he had just had the benefit of it locally, having been released unconditionally.
[13] Having said this, I am of the opinion that the IRB did not commit any patently unreasonable error that would be reviewable by the Federal Court.
[14] No question was proposed for certification by counsel. So I am not certifying any questions.
JUDGMENT
The Court orders that this application for judicial review be dismissed and that no question be certified.
"Simon Noël"
Judge
Certified true translation
Suzanne M. Gauthier, C.Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-21-02
STYLE: HATEM BEN TAHAR BEN OMRANE
and
THE MINISTER OF C ITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 26, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE SIMON NOËL
DATED: March 10, 2003
APPEARANCES:
Daniel Paquin FOR THE APPLICANT
Michael Roach FOR THE RESPONDENT
SOLICITORS OF RECORD:
Daniel Paquin FOR THE APPLICANT
Alarie, Legault, Beauchemin, Paquin, Jobin
Brisson & Philpot
Montréal, Quebec
Michael Roach FOR THE RESPONDENT
Department of Justice Canada
Ottawa, Ontario