Date: 19990322
Docket: IMM-2798-98
OTTAWA, ONTARIO, MARCH 22, 1999
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
HAIZER DJELAOUI, domiciled and
resident at 5551 rue St-Jacques,
apt. 6, Montréal, District of Montréal,
Province of Quebec
APPLICANT
| AND: THE MINISTER, Guy-Favreau Complex, |
200 René-Lévesque Boulevard
West, East Tower, 5th floor,
Montréal, District of Montréal,
Province of Quebec
RESPONDENT
O R D E R
For the reasons set out in the Reasons for Order, the application for judicial review is dismissed.
Max M. Teitelbaum
| J.F.C.C. |
Certified true translation
Peter Douglas
Date: 19990322
Docket: IMM-2798-98
BETWEEN:
HAIZER DJELAOUI, domiciled and
resident at 5551 rue St-Jacques,
apt. 6, Montréal, District of Montréal,
Province of Quebec
APPLICANT
| AND: THE MINISTER, Guy-Favreau Complex, |
200 René-Lévesque Boulevard
West, East Tower, 5th floor,
Montréal, District of Montréal,
Province of Quebec
RESPONDENT
REASONS FOR ORDER
TEITELBAUM J.
INTRODUCTION
[1] This is an application for judicial review of a Convention Refugee Determination Division decision of May 12, 1998, rejecting the applicant"s claim on the ground that he is not a Convention refugee. The applicant is asking this Court to quash the decision of May 12, 1998, and to order that this matter be referred back to a new panel of the Refugee Division.
FACTS
[2] The applicant, a 24-year-old Algerian citizen, alleges that he fears persecution based on imputed political opinion. In support of his claim, the applicant alleges the following facts drawn from the Refugee Division"s decision.
[3] In 1990, when he was a 17-year-old student, the applicant took an interest in the Front islamique du salut (the FIS) [Islamic Salvation Front] and participated in humanitarian activities until the summer of 1991. The applicant says that on May 29, 1997, the national security force questioned and released him on condition that he report to their office every Saturday. He says he later received two letters dated June 15 and July 6, inviting him to join the Groupe islamique armé (the GIA) [Armed Islamic Group]. The applicant alleges that the first letter said he would have to stop reporting to the national security force if he joined the GIA, otherwise he would be considered an informer because of his contacts with the national security force and would receive death threats. The applicant says he filed a complaint with the police, but they did not believe him. In the second letter, he was allegedly given one week to join the GIA. From that moment, he says he tried to leave Algeria.
[4] On July 17, 1997, the applicant left Algeria by boat for Belgium and arrived in Canada on July 27, 1997. After hearing the applicant"s testimony at a hearing on March 24, 1998, the Refugee Division determined that the applicant is not a Convention refugee.
Decision of the Refugee Division
[5] The Refugee Division found that the applicant did not, in a credible and trustworthy manner, demonstrate a well-founded fear of persecution by the GIA and the national security force for reasons of imputed political opinion.
[6] With respect to the national security force, the Refugee Division considered the applicant"s behaviour and account implausible. The applicant was unfamiliar with [TRANSLATION] "the events that marked the growth of the FIS, was uninterested in politics, did not have a membership card" and did not know whether he was under surveillance because he sympathized with the FIS. Furthermore, the Refugee Division found the following facts implausible: the national security force did not ask him any questions about his relationship with the FIS from 1990 to 1991 and his former classmates when he was interested in the FIS; the national security force asked him questions about the GIA but he knew nothing; he agreed to report to the national security force without knowing why he was under surveillance and did not ask for any explanation. In addition, the Refugee Division found it implausible that the national security force would place him under close surveillance with the threat of imprisonment if he failed to report, without taking his identity card and fingerprints. The Refugee Division also pointed out that once he was in Belgium, the national security force would have asked his family about him, but he made no effort to find out from his family what the consequences of his failure to report were.
[7] With respect to the GIA, the Refugee Division found the behaviour of the applicant, who made no effort to obtain a copy of the first letter filed with the police, to be inconsistent with his grounds for fear. The Refugee Division found it implausible that the GIA would not have gone to his home or caused his family any problems once the allotted time for joining them had passed. The Refugee Division also found it implausible that the GIA would take him for an informer and assure him of their protection against the national security force.
SUBMISSIONS OF THE PARTIES
[8] First, the applicant argues that the Refugee Division"s decision is unreasonable in light of the facts and his explanations about the nature of the events that led him to leave Algeria. Second, the applicant argues that the Refugee Division erred in failing to find that he would be forced to do his military service and would be in danger were he returned to Algeria.
[9] The respondent submits that the Refugee Division"s adverse credibility finding is reasonable in light of all the evidence in the record, and that the Refugee Division did not err in disregarding the issue of compulsory military service because there was no evidence in the record to suggest such a ground for persecution.
ISSUES
[10] The applicant"s application for judicial review raises two issues:
| 1) whether the Refugee Division"s decision that the applicant"s account is not credible and that his fears of persecution are not well founded is unreasonable; |
| 2) whether the Board erred in disregarding the possibility of the applicant being persecuted because he would have to do his military service if he were returned to Algeria. |
ANALYSIS
Compulsory military service
[11] The applicant argues that the Refugee Division erred in disregarding the issue of compulsory military service. Essentially, he claims that if he were to join the armed forces, he might be persecuted by Islamic terrorists, and would be forced to commit acts that international human rights law condemns. In support of his claims, the applicant cited a passage from Amnesty International"s 1997 Report and a passage from an IRB document entitled Algérie : service militaire, désertion et refus de servir [Algeria: military service, desertion and refusal to serve], dated June 16, 1997, to show that young people joining the Algerian army risk serious death threats from Islamic terrorists. These documents are attached to his affidavit.
[12] The Court file, which includes the list of documents examined by the Refugee Division, shows that while Amnesty International"s 1997 Report is part of the documentary evidence examined by the Refugee Division, the IRB document dated June 16, 1997, is not.
[13] The respondent raised no objection to the admissibility of these documents, and given my decision, they are irrelevant.
[14] I note that the passage the applicant cited from Amnesty International"s Report does not support his allegations that soldiers risk being persecuted by Islamic terrorists. Instead, that passage shows that many civilians are killed by the security forces. I must also point out that the Refugee Division had before it a one-page information document on GIA violence and recent activities aimed at discouraging young people from performing military service. That document refers to death threats against young people aged 19 to 22, and mentions that no information is available on whether those threats are carried out.
[15] Did the Refugee Division err in disregarding whether his enlistment in the armed forces if he were returned to Algeria warranted a well-founded fear of persecution? The respondent submits that the Refugee Division cannot be faulted for not deciding an issue that did not emerge perceptibly from the evidence, and refers to two Federal Court of Appeal decisions: Pierre-Louis v. Canada (M.E.I.) (F.C.A.) (A-1264-91, April 29, 1993) and Guajardo-Espinoza v. Canada (M.E.I.) (F.C.A.) (A-304-92, August 5, 1993).
[16] In Guajardo-Espinoza, supra, per Mr. Justice Létourneau, the Federal Court of Appeal said:
| The appellants submitted their application to the Refugee Division based on a fear of persecution as members of a particular social group and it was properly dismissed by the tribunal. This four-line sentence stands alone in an eighteen-page personal information form; and even if is to be interpreted in this way, which the Court does not accept, it is the only evidence of the political opinions attributed to the appellants. |
| With respect, the Court does not feel that the appellants can ex post facto, that is once the Refugee Division decision has been rendered, change the nature of the argument they made to the tribunal based on one single sentence they took out of the file after fine tooth-combing it. As this Court recently said in Pierre-Louis v. M.E.I., the Refugee Division cannot be faulted for not deciding an issue that had not been argued and that did not emerge perceptibly from the evidence presented as a whole. Saying the contrary would lead to a real hide-and-seek or guessing game and oblige the Refugee Division to undertake interminable investigations to eliminate reasons that did not apply in any case, that no one had raised and that the evidence did not support in any way, to say nothing of frivolous and pointless appeals that would certainly follow. |
[17] In Pierre-Louis, supra, the Federal Court of Appeal also stated:
| In this case, we do not believe that the Refugee Division can be faulted for not deciding an issue that had not been argued and that did not emerge perceptibly from the evidence presented as a whole. Even if, however, we had been of the opinion that the Refugee Division had a duty to consider this new argument, and even if we were to accept, for the sake of argument, that counsel could raise this argument before us, it being very different from the one he made before the Refugee Division and in his factum, it is apparent on reading the record that the few passages quoted were taken completely out of context and, in reality, the fear felt by the appellants was fear of a police officer who was seeking, at most, to avenge himself personally for an insult offered to him by the appellants. This is not fear of persecution.. |
[18] The applicant"s personal information form, which includes a section on military service, does not refer to the risk of persecution in the armed forces or to the fact that the applicant fears he would be persecuted if he were to do his military service. In answer to question 19, on military service, the applicant said he had not done his military service because he had not been called up. At the hearing, the applicant was asked a few questions about military service. The applicant merely answered that he had not done his service and made no reference to the risks or to his fears of persecution in the army. Furthermore, it does not emerge from the documentary evidence as a whole that there are risks of persecution or that the applicant feared he would be persecuted if he were to join the armed forces on returning to Algeria. In my view, the Refugee Division cannot be faulted for disregarding this issue.
Credibility assessment
[19] The applicant submits that the Refugee Division"s decision is unsound. He argues that it is plausible, for instance, that he would not know why he was under surveillance, because the police refused to give him that information; that he was an FIS sympathizer, because he had distributed documents about the platform and meetings of the FIS; that the GIA would not have taken action after the time specified in the second letter had passed, because he left the country soon after; that he would agree to report to the police station without knowing why, because he had been threatened with imprisonment; that his national identity card would not have been confiscated or his fingerprints taken, because he had already agreed to report every Saturday, etc.
[20] The respondent submits that the Refugee Division has already considered and dismissed these explanations, and refers the Court to Muthuthevar v. M.E.I., (F.C.T.D.) (IMM-2095-95, February 15, 1996), in which Mr. Justice Cullen stated:
| While the applicant seeks to "explain away" testimony that the Board found implausible, it must not be forgotten that these same explanations were before the Board and were not accepted as credible. The Applicant has not directed to this Court evidence that was ignored or misconstrued, and in the absence of such finding, the Board"s conclusions on credibility must stand. |
[21] There is no question that the Refugee Division has the necessary discretion to assess the credibility of the applicant and his account. In assessing credibility, the Refugee Division may have regard to numerous factors, including contradictions and inconsistencies, as well as rationality and common sense: Shahamati v. M.E.I., (F.C.A.) (A-388-92, March 24, 1994); Kabeya v. Canada (M.C.I.) (F.C.T.D.) (IMM-813-97, January 7, 1998).
[22] The applicant is asking the Court to weigh the evidence on which the credibility finding is based. While it is possible to isolate a comment and base quite another finding on it or find fault with it, this Court cannot substitute its own findings or intervene when on the evidence as a whole, an adverse credibility finding is reasonable.
[23] The applicant has not persuaded the Court that the Refugee Division"s decision is unreasonable in light of the evidence as a whole. In my view, it was open to the Refugee Division to find it implausible that the applicant would know nothing about the FIS, its events or policies, when he claims he was active in the organization; that the GIA would not have attempted to contact him or his family after sending him two ultimatum-style letters; that the GIA would take him for an informer and agree to protect him from the police; that the applicant would agree to report to the police once a week without knowing the reasons for this surveillance, etc. All things considered, it was open to the Refugee Division to make an adverse credibility finding.
CONCLUSION
[24] The Refugee Division made no error warranting the Court"s intervention when it disregarded whether the applicant might be persecuted if he were to do his military service, because that issue was not argued and did not emerge perceptibly from the evidence in the record as a whole.
[25] The Refugee Division"s decision is reasonable in light of the evidence in the record as a whole.
[26] The application for judicial review is dismissed.
[27] The parties did not submit any question for certification.
Max M. Teitelbaum
| J.F.C.C. |
Ottawa, Ontario
March 22, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2798-98
STYLE OF CAUSE: HAIZER DJELAOUI v. THE MINISTER
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MARCH 18, 1999
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE TEITELBAUM
DATED: MARCH 22, 1999
APPEARANCES:
PIERRE LANGLOIS FOR THE APPLICANT
SHERRY RAFAI FAR FOR THE RESPONDENT
SOLICITORS OF RECORD:
PIERRE LANGLOIS FOR THE APPLICANT
SAINT-LAMBERT, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA