Date: 20030226
Docket: IMM-3472-02
Ottawa, Ontario, February 26, 2003
Before: Pinard J.
Between:
ADIL MIRZA HUSSAIN,
MAHJABEEN MOHAMED DHALA,
ZAINAB ADIL HUSSAIN,
FATIMA ADIL HUSSAIN
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review from the decision by the Refugee Division of the Immigration and Refugee Board on June 26, 2002, that the plaintiffs are not Convention refugees is dismissed.
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"Yvon Pinard"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20030226
Docket: IMM-3472-02
Neutral citation: 2003 FCT 222
Between:
ADIL MIRZA HUSSAIN,
MAHJABEEN MOHAMED DHALA,
ZAINAB ADIL HUSSAIN,
FATIMA ADIL HUSSAIN
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board ("the IRB") on June 26, 2002, that the plaintiffs are not Convention refugees, as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
[2] The principal male plaintiff, Adil Mirza Hussain, is a citizen of Iraq and alleged that he feared persecution in his country for his religion (Shiite Moslem), his membership in a particular social group and his political opinions. The principal female plaintiff, Mahjabeen Mohamed Dhala, is an Indian national and the wife of the principal male plaintiff. She claimed refugee status on account of her Shiite religion. Their two minor daughters, Zainab Adil Hussain and Fatima Adil Hussain, based their claims on those of their parents.
[3] On account of a number of contradictions and inconsistencies in the plaintiffs' testimony, the IRB found them not to be credible. It was open to the panel not to assume that their testimony was true.
[4] The plaintiffs submitted in particular that the IRB erred in objecting that the principal male plaintiff used fraudulent means to come to Canada and drawing negative conclusions about his credibility after believing him when he said that he obtained Pakistani passports fraudulently in order to obtain a residence in the United Arab Emirates ("UAE"). However, the IRB accepted the fact that the principal male plaintiff was a citizen of Iraq, despite the inconsistencies and improbabilities in his testimony and the lies which he admitted telling in order to obtain his Pakistani documents. This does not mean that the panel could not find that the principal male plaintiff had not provided credible evidence in support of his claim. The many inconsistencies in his testimony had nothing to do with his Iraqi identity. Accordingly, it was not unreasonable for the panel to find that his account of his fear of persecution was not credible.
[5] The plaintiffs further submitted that the IRB erred by finding that the principal male plaintiff had not satisfactorily established that Iraqi refugees in the UAE had been deported to Iraq when relations between the two countries improved. The IRB found that the principal male plaintiff had not satisfactorily established that he was himself in danger of being removed from the UAE, as appears from the following extract at page 11 of its decision:
In the panel's opinion, even though some people might have been deported from the UAE, the principal claimant did not produce satisfactory evidence that these people had the same status in the UAE as he did. Asked if he had any evidence that the Emirate authorities deported Iraqi citizens for possessing false passports and having obtained their residence permits through fraudulent means, he stated that many people have false passports but they kept it as a secret, they would not declare it. The principal claimant failed to produce satisfactory evidence that he risked to be deported from UAE for the alleged reasons.
[6] The plaintiffs submitted that the documentary evidence and the testimony by the principal male plaintiff were clear on this point. However, they provided no documents in support of their argument, and referred to none. I found nothing in the country of origin documents to indicate that Iraqi refugees in the UAE had been deported to Iraq. Since the IRB did not believe the principal male plaintiff, the latter's testimony did not suffice to establish that he was in danger of deportation. The conclusion drawn by the panel on this point was therefore not unreasonable, based on the evidence before it.
[7] Finally, the plaintiffs objected that the IRB had made a selective use of the documentary evidence about the situation in India. I am not persuaded that this was in fact the case. It is well settled that a court must assume that a tribunal took into account all the evidence before it (see e.g. Taher v. Minister of Citizenship and Immigration (September 7, 2000), IMM-5255-99, Hassan v. Minister of Citizenship and Immigration (October 22, 1992), A-831-90, Florea v. Minister of Employment and Immigration (June 11, 1993), A-1307-91 and Woolaston v. Minister of Manpower and Immigration, [1973] S.C.R. 102). In the case at bar the principal female plaintiff relied on an isolated incident, namely threats made by a passerby, and on general conditions in India, in an effort to persuade the IRB of the validity of her fear. In view of the documentary evidence indicating that the general situation for Moslems in India was stable and that there were legal guarantees of the right to freedom of religion and its practice, the panel's conclusion in this regard was certainly not patently unreasonable.
[8] In conclusion, it should be noted that on questions of credibility and assessment of facts this Court's intervention is only justified if the decision at issue is based on an erroneous finding of fact made a perverse or capricious manner or without regard for the material before the administrative tribunal (s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). As I am not persuaded that any manifest and overriding error of fact was made, I must dismiss the application for judicial review.
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"Yvon Pinard"
Judge |
OTTAWA, ONTARIO
February 26, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-3472-02
STYLE OF CAUSE: ADIL MIRZA HUSSAIN, MAHJABEEN MOHAMED DHALA, ZAINAB ADIL HUSSAIN, FATIMA ADIL HUSSAIN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 15, 2003
REASONS FOR ORDER BY: Pinard J.
DATED: February 26, 2003
APPEARANCES:
Styliani Markaki FOR THE PLAINTIFFS
Roberto Godoy FOR THE DEFENDANT
Assisted by Annie Van Der Meerschen
SOLICITORS OF RECORD:
Styliani Markaki FOR THE PLAINTIFFS
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario