Date: 20041112
Docket: IMM-8587-03
Citation: 2004 FC 1597
OTTAWA, ONTARIO, NOVEMBER 12, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
ASHRAF BAHLOUL GHARABULLI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ashraf Bahloul Gharabulli is a citizen of Libya who claims to have a well-founded fear of persecution based on his perceived political opinion. His claim for refugee protection was rejected by the Refugee Protection Division of the Immigration and Refugee Board. The Board found that Mr. Gharabulli failed to provide credible evidence to support his claim.
[2] Mr. Gharabulli now seeks judicial review of the Board's decision, asserting that its credibility findings were patently unreasonable.
Mr. Gharabulli's Allegations
[3] Mr. Gharabulli asserts that he opposed the repressive regime of Colonel Qadhafi. Because the government does not tolerate any form of political opposition, Mr. Gharabulli did not openly criticize the regime for fear of reprisals. Rather, he limited his activities to visiting opposition websites on the Internet. These sites criticized the Qadhafi regime, and promoted a more democratic form of government for Libya
[4] Mr. Gharabulli started viewing these sites in June of 2001, continuing to do so until he left Libya for Canada in October of 2002. Mr. Gharabulli says that he would only look at the sites when he was alone, or with a few trusted friends.
[5] In November of 2001, Mr. Gharabulli came to Canada to study on a government-funded scholarship. He returned to Libya for a few weeks in September of 2002. While he was there, he again looked at the opposition websites with friends. On October 6, 2002, Mr. Gharabulli returned to Canada.
[6] Mr. Gharabulli says that he telephoned his parents the following day, to let them know that he had arrived safely. He says that his parents told him that Libyan intelligence agents had come to the family home that day looking for him. The agents allegedly told his father that Mr. Gharabulli had contact with groups opposing the government through the Internet, and that he had allegedly been working with the opposition.
[7] Mr. Gharabulli says that the agents told his parents that because he had been working against the interests of the country and its people, he would be executed if he were caught.
[8] On October 25, 2002, Mr. Gharabulli filed his refugee claim, claiming persecution on the grounds of his perceived political opinion. He also claimed to be a person in need of protection, asserting that his deportation to Libya would subject him to a risk of cruel and unusual punishment, a risk to his life, and a risk of torture.
The Board's Decision
[9] The Board noted that Libya is controlled by an extremely repressive regime - one that rejects democracy and other political parties. The country has a multi-layered security system in place that monitors and controls the activities of individuals, although in recent years, the focus of attention has been on clearly defined opposition groups and individuals. It has been estimated that 10-20% of the population is engaged in surveillance for the government.
[10] The Board further observed that the Libyan government regularly infringes on its citizens' privacy rights, and that torture and other cruel, inhumane and degrading treatment is commonplace.
[11] With this understanding of the prevailing conditions within Libya, the Board then turned to the specifics of Mr. Gharabulli's allegations.
[12] The Board found that it was not plausible that one of Mr. Gharabulli's trusted friends would have turned him in to the authorities, especially considering that the friend would have been involved in similar activities themselves.
[13] The Board found several other implausibilities and inconsistencies in Mr. Gharabulli's story, leading it to conclude that his story was concocted.
[14] Further, the Board found that Mr. Gharabulli's evidence as to his activities between 1998 and his departure for Canada in 2001 to be vague and uncertain, noting that Mr. Gharabulli had no documentary evidence to support his claim to have been attending school in Libya.
Issue
[15] The only issue on this application is whether the Board's credibility findings were patently unreasonable.
Analysis
[16] The Immigration and Refugee Board has a well-established expertise in the determination of questions of fact, including the evaluation of the credibility of refugee claimants. Indeed, such determinations lie at the very heart of the Board's jurisdiction. Accordingly, before a finding of fact made by the Board will be set aside by this Court, it must be demonstrated that the finding was patently unreasonable: Aguebor v. Canada (Minster of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[17] Where the Board's credibility findings are based upon implausibilities identified by the panel, the Court may intervene on judicial review where "the reasons that are stated are not supported by the evidence before the panel, and the court is in no worse position than the hearing panel to consider inferences and conclusions based on criteria external to the evidence such as rationality, or common sense." (See Yada et al. v. Canada (Minister of Employment and Immigration) (1998), 140 F.T.R. 264. See also Divsalar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 875).
[18] Notwithstanding the highly deferential standard of review applicable in this case, I am satisfied that a key finding made by the Board cannot withstand judicial scrutiny, and that, as a result, the Board's decision must be set aside.
[19] Central to Mr. Gharabulli's refugee claim is his assertion that he was targeted by the Libyan security authorities because he accessed anti-government websites. The Board rejected his evidence in this regard, stating:
I find it reasonable to expect that none of the claimant's trusted friends would turn informer and tell the authorities that he had searched these web sites, particularly in view of the evidence that these trusted friends had also viewed the very same web sites themselves.
Although the Board does not explicitly say so, this is essentially a finding that this aspect of Mr. Gharabulli's story was implausible.
[20] The Board's finding on this point is largely conclusory in nature. Indeed, the only reason expressed by the Board for coming to this conclusion is that the friends themselves had viewed the same websites.
[21] The evidence before the Board from both Mr. Gharabulli and from the country condition information was that the Libyan government tolerates no political opposition, and that it carefully monitors and controls the activities of citizens. Further, the independent documentary evidence before the Board demonstrated that Libyan security forces rely to a large extent on civilian informants, with 10-20% of the population being engaged in surveillance for the government. With this in mind, it is difficult to understand how the Board was able to determine that none of Mr. Gharabulli's friends would have turned him in, and to do so with such certainty.
[22] I am not persuaded that the fact that Mr. Gharabulli's 'friends' were also viewing the opposition websites means that none of them could have been acting as an informant. It seems to me to be entirely plausible that informants would be expected to infiltrate groups suspected of opposing the government.
[23] The Board had other reasons for finding that Mr. Gharabulli's story was not credible. While I have concerns with respect tosome of these other findings, it is not necessary to address them here, as I am satisfied that the Board's finding that none of Mr. Gharabulli's friends would have turned him in was sufficiently central to the Board's reasoning that the decision cannot stand.
Conclusion
[24] For these reasons, the decision of the Board is set aside, and the matter remitted to a differently constituted panel for redetermination.
Certification
[25] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious questionof general importance is certified.
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8587-03
STYLE OF CAUSE: ASHRAF BAHLOUL GHARABULLI v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO.
DATE OF HEARING: NOVEMBER 8, 2004
REASONS FOR ORDER
AND ORDER: MACTAVISH J.
DATED: NOVEMBER 12, 2004
APPEARANCES BY:
Mr. Rezaur Rahman FOR THE APPLICANT
Ms. Sonia Barrette FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Rezaur Rahman
1882 Hennessy Crescent
Ottawa, Ontario
K4A 3X8
FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT