Date: 20010817
Docket: IMM-2197-00
Neutral citation: 2001 FCT 906
Ottawa, Ontario, Friday the 17th day of August 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Ben Milud is a 31 year old citizen of Libya who brings this application for judicial review of the April 19, 2000 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which found him not to be a Convention refugee.
FACTS
[2] Mr. Ben Milud claimed refugee status on the basis that his family was persecuted by the Libyan government because of his brother's political opinion. Mr. Ben Milud stated that his family's problems began in 1986 when his brother was imprisoned for political activities which were critical of the government. After this, the family was said to come under suspicion and to suffer harassment and persecution. Mr. Ben Milud testified as to the following specific events:
1. In 1988, he was arrested and detained for 90 days, during which time he was interrogated and beaten;
2. In 1990, during his first year in medical school, he was arrested and jailed for 66 days;
3. In 1993, his brother Abdelhamid was dismissed from the army and his brother Yunes fled Libya;
4. In 1994, the shop of his brother Saoud was closed by the authorities;
5. In 1996, Mr. Ben Milud was questioned by government agents, but was not arrested;
6. In 1997, he completed his medical degree;
7. Near the end of 1998, Mr. Ben Milud was questioned by a security agent. After that his reputation began to suffer in the hospital where he then worked. Under pressure from the government he was obliged to take an extended vacation and he then lost his position at the hospital. Mr. Ben Milud stated in his Personal Information Form ("PIF") that "[n]ow, I felt under even more threats from the authorities, and I knew I would have to find a way to leave Libya".
8. On May 26, 1999, Mr. Ben Milud left Libya and arrived in Canada, where he claimed refugee status on June 2, 1999.
[3] The CRDD concluded that there was no connection between the imprisoned brother's circumstances and Mr. Ben Milud's situation, at least since 1990. The CRDD also found several implausibilities in Mr. Ben Milud's evidence, as well as inconsistencies between his written and oral testimony.
[4] Specifically, in its reasons the panel pointed to the following:
1. The CRDD disbelieved Mr. Ben Milud's claim that the incident in December of 1998 was the "last straw" which caused him to leave Libya because Mr. Ben Milud had earlier approached a college in Canada in order to study there. The CRDD found that Mr. Ben Milud's decision to come to Canada was taken well before the incident which he testified made him leave Libya;
2. Given that Mr. Ben Milud was effectively forced to take leave from his job at the hospital after the authorities interviewed Mr. Ben Milud in December of 1998, the CRDD found it implausible that Mr. Ben Milud would subsequently be allowed to work as a volunteer in the gynaecological unit at the same hospital;
3. The CRDD found it implausible that if Mr. Ben Milud was politically suspect, he would be given a laudatory letter from the administrator of the government hospital;
4. The CRDD noted that Mr. Ben Milud's passport had not been cancelled and that he had travelled in and out of Libya, a privilege not afforded to political opponents of the government; and
5. The CRDD also noted that the written narrative in Mr. Ben Milud's PIF did not refer to certain incidents which were recounted by Mr. Ben Milud in his oral testimony, including that his brothers were also interrogated at the time the accusations against him were made, that there was a car parked outside his house, that his phones were tapped, and that his friends and relatives avoided contact with him.
[5] The CRDD concluded, based on those implausibilities and inconsistencies, that Mr. Ben Milud's testimony was not trustworthy or reliable, and that there was no more than a mere possibility that he would face persecution in Libya on a Convention ground.
[6] Mr. Ben Milud took issue with each finding of implausibility or inconsistency.
[7] With respect to the first finding, Mr. Ben Milud argued that the CRDD had misapprehended the evidence in that he never testified that the December 1998 incident triggered his decision to leave Libya. Mr. Ben Milud pointed to his testimony at the hearing that he intended to leave Libya for a long time, that when he applied to a college in Canada he intended to claim refugee status, and that the December 1998 incident was simply "the last straw".
[8] From my review of the transcript as a whole it is clear that Mr. Ben Milud was allowed ample opportunity to explain how his application for a student visa was consistent with his claim of fear of persecution and with his statement that the December 1998 incident was "the last straw" that caused him to flee Libya. In view of the clear statement in his PIF that it was after the December 1998 episode that "I knew I would have to find a way to leave Libya" I do not find the CRDD's finding that Mr. Ben Milud decided to come to Canada before what he testified was the "last straw" to be so unreasonable as to warrant interference.
[9] With respect to the second and third findings of the CRDD, I do not consider that it was devoid of rationality for the CRDD to conclude that in a politically oppressive regime such as that in Libya (as described in the country conditions documents) Mr. Ben Milud was not likely to have been allowed to continue working at a hospital from which he was dismissed for apparently political reasons, nor that he, a political suspect, would obtain an official recommendation letter from the employer.
[10] It was also argued that in making such findings the CRDD misunderstood Mr. Ben Milud's testimony and breached the duty of fairness by not asking further questions. I can find no basis on which to conclude that the CRDD either misunderstood or ignored Mr. Ben Milud's evidence. The CRDD is not obliged to refer to every piece of evidence before it, nor in the face of clear testimony is it obliged to alert an applicant of its concerns about the plausibility of that testimony. See, on the last point: Appau v. Canada (Minister of Employment and Immigration) (1995), 91 F.T.R. 225 (T. D.).
[11] As to the fourth finding of the panel, the CRDD's adverse inference based on the fact that Mr. Milud could not travel outside Libya without government approval was also, in my view, not unreasonable. It was supported by the most recent documentary evidence, the 1998 Libya Country Report prepared by the U.S. Department of State, which reported that the government required citizens to obtain exit permits for travel abroad.
[12] As to the final finding of the CRDD regarding the omissions from his PIF, Mr. Ben Milud argued that this was a minor part of his claim and that it was patently unreasonable to fault him for failing to mention these matters, particularly considering the seriousness of his prior arrests. Contrary to that assertion, I find that the CRDD's conclusion about the omissions was not unreasonable. Tapping of phones, cars parked outside Mr. Ben Milud's house, and friends and relatives who avoided contact with him could reasonably be viewed to be significant in view of the nature of his claim and the amount of time which had elapsed since Mr. Ben Milud's arrests in 1988 and 1990.
[13] Finally, Mr. Ben Milud argued that it was not clear from the CRDD's reasons whether the CRDD disbelieved all of his evidence, specifically his evidence relating to the mistreatment of his brothers, past incidents of arrest and the harassment of his father. It was submitted that given the documentary evidence relied upon by the CRDD with respect to Libya's human rights record, the CRDD should have considered the totality of the evidence so as to assess whether there was a risk to Libyan citizens if even suspected of political opposition. Thus, it was said to be a reviewable error on the part of the CRDD to fail to consider those portions of Mr. Ben Milud's evidence which were not discredited in its reasoning and to then determine whether there was a basis for a well-founded fear of persecution. Mr. Ben Milud relied upon the decision of the Federal Court of Appeal in Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.).
[14] While it is true that the CRDD could have analysed in more detail whether or not, if true, the situation of Mr. Ben Milud's family amounted to persecution, I accept that in the circumstances of this case the CRDD was not required to do so because the CRDD had found, as it was entitled to do, that due to the effluxion of time there was no nexus between Mr. Ben Milud's brother's imprisonment and the actions directed against Mr. Ben Milud.
[15] In the result, notwithstanding the able submission of counsel for Mr. Ben Milud, I have concluded that the application for judicial review should be dismissed.
[16] Counsel posed no question for certification and no question is certified.
ORDER
[17] IT IS THEREFORE ORDERED THAT:
For the reasons set out above, the application for judicial review is dismissed.
"Eleanor R. Dawson"