Date: 20011213
Court File No.: IMM-337-00
Neutral Citation: 2001 FCT 1372
Ottawa, Ontario, this 13th day of December, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
GAMIL ABDALLAH ABDOUSAFI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Nature of Proceedings
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD") dated January 5, 2000, which held that the applicant was not a Convention Refugee pursuant to subsection 2(1) of the Immigration Act (the "Act"), R.S.C. 1985, c. I-2.
Facts
[2] The applicant, a 35 year old ethnic Arab, is a citizen of Djibouti. Despite his young age, he walks with a pronounced limp due to a polio attack during his childhood. He is a high school graduate employed as a supervisor on his father's farms since 1988. The applicant's father owned four farms and operated a retail food produce business in Djiboutiville.
[3] The applicant's evidence is that his father and his older brother Abdo-Yo joined the Front for the Restoration of Unity and Democracy ("FRUD") in 1991. Although not active, his father provided money and food to the military wing of FRUD during the civil war and afterwards. The applicant states that his physical disability did not allow him to join FRUD. In February, 1998, the applicant was arrested along with his father and brother by the Djibouti Security Services. He was accused of aiding FRUD and was held in detention and interrogated. After four days, the applicant was released and required to report to the authorities once a week. His father and brother were kept in detention. He returned to his home only to find that it had been ransacked and money had been stolen from his father's safe. His father's four farms where seized by the government and the applicant went to live with relatives. The applicant is unclear as to exactly when the government seized his father's farms.
[4] In mid May 1998, the applicant learned that his father had died in prison. His evidence is that he believes his father died as a result of torture. In mid June 1998, the applicant received word from his brother who was still being held by the Security Services that the applicant should flee the country. The applicant was still being intermittently arrested, detained for short periods of time and interrogated. It is on August 28, 1998, with the assistance of a business friend of his father, that the applicant left Djibouti and came to Canada. Upon arriving in Canada, he claimed refugee status stating that he feared persecution due to his ethnic identity as an Arab, his political opinion as a supporter of the FRUD and his membership in a particular social group, that being his family identity. On January 5, 2000, a single member panel of the CRDD, held that the applicant was not a Convention refugee. On January 28, 2000, the applicant filed an application for leave and for judicial review.
CRDD'S Decision
[5] In deciding that the applicant was not a Convention Refugee, the CRDD concluded that the material elements of the applicant's claim were not credible. In its conclusion the CRDD stated:
Before reaching a final decision in regard to credibility I gave careful consideration to the claimant's mental abilities and comprehension of the evidence. Some of his responses were so contradictory that it was necessary to consider whether or not he fully grasped the nature of the evidence. However, the claimant is a high school graduate who had significant responsibilities as a farm manager. Although he did not appear to genuinely comprehend the temporal relationship between some events, such as his arrest and release, he was not an unsophisticated witness. At other times he was able to provide quite subtle distinctions between the evidence, for example, providing a precise explanation for his understanding of the word incarcerated. And certainly in other parts of the testimony he purported to have quite clear and accurate recall of specific details.
I find that the material elements of this claim, specifically those of the claimant and his family's involvement in FRUD and subsequent arrest are not credible. Without these particular facts, there is no basis for concluding that the claimant has a well-founded fear of persecution in Djibouti. There is no documentary evidence that indicates that a Djiboutian citizen who is an ethnic Arab would have a well-founded fear of persecution solely based upon race. I therefore conclude that the claimant does not have a well-founded fear of persecution in Djibouti.
The claimant did present some evidence in support of his claim. My finding of non credibility in regard to some material facts was based on a balance of probabilities. This is not an appropriate case for a finding of "no credible basis".
Standard of Review
[6] The jurisprudence of this Court has generally accepted that the standard of review of decisions of the CRDD is patent unreasonableness except for questions involving the interpretation of a statute where the standard becomes correctness. [See Concoka v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300, p. 2 at para. 5.] In Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, pp. 316-317, at para. 4, Décary J.A. set the standard of review with regards to findings of credibility and plausibility of the CRDD, he stated:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
Issues
[7] The applicant, in his factum, raised the following four issues:
(1) - Did the board base its decision on erroneous findings of fact that were made in a perverse or capricious manner?
(2) - Did the board err in law in not considering the totality of the evidence properly before it?
(3) - Did the alleged negligence of the counsel who represented the applicant at the hearing before the CRDD play a negative role in the claimant's claim?
(4) - Did the panel have a duty to obtain a medical assessment in such a matter?
[8] Prior to the hearing of the judicial review, the applicant attempted by motion to have the affidavit of Clarel Midouin introduced in support of the contention that the applicant lacked competency and is therefore unable to appreciate the nature of the proceedings. At the hearing of the application for judicial review, counsel for the applicant withdrew his motion requesting that the affidavit of Clarel Midouin be received by the Court. Counsel for the applicant, at the beginning of the hearing, also informed the Court that he was essentially abandoning his arguments on all of the issues raised in his factum except one, namely, that the CRDD erred in failing to request a proper professional assessment of the competency of the applicant; and in failing to appoint a guardian as required under subsections 29(4) and 29(5) of the Act.
[9] Given the position of the applicant on the other issues raised in the notice of application and argued in the applicant's factum, I will not proceed, in these reasons, with an extensive analysis of these issues. I am nevertheless in a position, having reviewed the decision of the CRDD and the materials submitted by the parties, to make the following findings. I conclude on the issues raised by the applicant and not argued at the hearing that the CRDD assessed the totality of the evidence before it, did not act perversely or capriciously in its assessment of the evidence, or that it made its findings of fact without regards to the evidence. I find that the inferences and conclusions drawn by the CRDD in its reasons were reasonably open to it on the record.
[10] I will now deal with the only outstanding issue in this judicial review; the issue of the competency of the applicant and how the CRDD dealt with it. The record shows that this issue was of significant concern to the CRDD throughout the hearing. On the second day of the hearing, the CRDD convened a mid-hearing conference to deal specifically with this issue. It is useful to reproduce here the exchange between the presiding member of the Panel and the applicant's counsel:
BY PRESIDING MEMBER (to counsel)
We are back on the record for a mid-hearing conference. Mr. Creates, why I called this mid-hearing conference is I have concerns about this claimant's testimony. I find a great deal of it to be incomprehensible. He just stated that now that he was -when we were trying to determine when he was released and when he lived in his house, he now stated at the end of the fourth month. Well, that is directly contradictory to his prior testimony when he was arrested in February and released after four days. The pattern of understanding - and I am just finding endless contradictions, but at this point it is unclear to me whether this claimant does not understand the questions, whether he is unable to frame his answers. I am just unclear of what is going on.
Do you have any comments or can you assist me in any way?
BY COUNSEL(to presiding member)
Listen, I'm hearing it in the same manner you are. I don't find him any more comprehensible in my office. So this style of testimony comes as no surprise to me. He is difficult to get clear and consistent articulation out of him, and I, like you, am not sure whether that affects his credibility or whether there is just a low IQ or something.
BY PRESIDING MEMBER (to counsel)
Well, let me say that it does affect his credibility, but it's just an issue of whether or not that there are explanations other than the fact that the story is untrue, for example, that he just lacks intelligence, lacks ability to comprehend the questions.
Analysis
[11] Subsections 29(4) and 29(5) of the Act provide as follows:
29(4) Minors and incompetents
29(4) Représentation des mineurs et incapables
(4) Where an inquiry is held with respect to any person under the age of eighteen years or any person who, in the opinion of the adjudicator presiding at the inquiry, is unable to appreciate the nature of the proceedings, the person may, subject to subsection (5), be represented by a parent or guardian.
(4) Toute personne faisant l'objet d'une enquête peut, si elle a moins de dix-huit ans ou si, selon l'arbitre, elle n'est pas en mesure de comprendre la nature de la procédure, être représentée par son père, sa mère ou son tuteur ou curateur.
29(5) Where representative designated by adjudicator
29(5) Désignation d'un représentant par l'arbitre
(5) Where at an inquiry a person described in subsection (4) is not represented by a parent or guardian or where, in the opinion of the adjudicator presiding at the inquiry, the person is not properly represented by a parent or guardian, the inquiry shall be adjourned and the adjudicator shall designate some other person to represent that person at the expense of the Minister.
(5) À défaut d'un des représentants visés au paragraphe (4) ou s'il estime qu'aucun d'entre eux n'est apte à représenter l'intéressé, l'arbitre suspend l'enquête et désigne un autre représentant, aux frais du ministre.
[12] The applicant contends that the CRDD had a duty to obtain a medical assessment of the applicant to establish his mental deficiencies and, once established, appoint a designated representative for the purpose of the hearing. The applicant argues that it was not sufficient for the CRDD to accept that, simply because he went to high school, he was competent. A proper determination of competency was essential in view of the fact that the applicant's lack of competency is clearly linked to the inferences drawn by the CRDD and to its ultimate finding of lack of credibility. The respondent's submission is that there is no legislative or other authority indicating that the CRDD had the duty to investigate whether a medical examination of the applicant is required. The respondent further submits that the appointment of a guardian is only required if the adjudicator presiding at the inquiry is of the opinion that the applicant is unable to appreciate the nature of the proceedings.
[13] In its conclusion, previously cited in these reasons, it can be seen that the CRDD turned its mind to this issue. It expressed concern with regard to certain responses which were so contradictory that it required the CRDD to consider whether the applicant fully grasped the nature of the evidence. However, the CRDD did go on to conclude that, at other times, the applicant was able to provide quite subtle distinctions in his evidence and quite clear and accurate recall of specific details. It appears to me that the CRDD's conclusion implicitly leads one to the view that it was of the opinion that the applicant did have the ability to appreciate the nature of the proceedings. The Act does not require that the CRDD must rely on a medical assessment rather than its own assessment of the applicant's ability. The onus was on the applicant to bring forward medical evidence of his alleged deficiency. No such evidence is before me nor was any such evidence before the CRDD. It is noted as well, that at all times, the applicant was represented by counsel. The CRDD's finding that the applicant had difficulty understanding the relative timing of various events, but not that he was unable to appreciate the nature of the proceedings in general, was a finding that was reasonably open to the CRDD on the record. I therefore conclude, on this issue, that the applicant did not satisfy the test set out in the Act, namely, that the applicant is unable to appreciate the nature of the proceedings in order to require the designation of a representative at the hearing. I find that the CRDD, in conducting the hearing in the absence of such representation, did not commit a reviewable error.
[14] The applicant lists in his factum, as one of his issues in this application, the following question: "Did the [applicant's] counsel's negligence play a negative role in the claimant's claim." This argument was not pursued by the applicant's counsel at the hearing. Where the incompetence of counsel is at issue, I share the view expressed by Denault J. in Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51. At pages 60-61 of that decision, my colleague canvassed the criteria for reviewing a decision on the grounds of the incompetence of counsel. He stated that, when a hearing is held, a decision can only be reviewed in extraordinary circumstances, where there is sufficient evidence to establish the exact dimensions of the problem and where the review is based on a precise factual foundation. In this case, there is simply no evidentiary basis to establish the necessary factual foundation to support the allegation that applicant's counsel was aware of his mental deficiency and neglected to obtain a medical assessment. In my view, no extraordinary circumstances have been established that would allow this Court to consider reviewing this decision on the basis of the alleged incompetence of the counsel who represented the applicant at the CRDD hearing.
[15] For all of the above reasons, this application for judicial review will be dismissed.
[16] Counsel for the applicant proposes the following question for certification:
"Is it a miscarriage of justice, when the medical/psychological state of a refugee claimant who appears to be mentally incompetent and unable to understand the nature of the proceedings or evidence is not addressed by a tribunal?"
[17] The question proposed for certificate by the applicant would appear to suggest that the applicant's "mental ability" was not addressed by the tribunal. As I have already indicated in these reasons, this issue was clearly canvassed by the Tribunal. I conclude that it would be inappropriate to certify a question that suggests otherwise. I, therefore, do not propose to certify a general question of general importance as contemplated by section 83 of the Immigration Act.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge