Date: 19980421
Docket: IMM-852-97
BETWEEN:
KALID DAU BENNASIR
(also known as KHALID DAU BENNASIR)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN J.:
[1] The applicant, Kalid Dau Bennasir (also known as Khalid Dau Bennasir), seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated 27 January 1997, wherein the Board determined that the applicant was not a Convention refugee, within the meaning of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The Board determined that the applicant was not a Convention refugee as it found no valid basis in the applicant's testimony for him to have had a well-founded fear of persecution in Libya. The Board's finding was largely based upon its conclusion that the applicant was not a credible or trustworthy witness.
[3] The Board addressed three possible reasons for the applicant's fear of persecution in its decision. First, it considered whether Libyan authorities might be interested in him because of his association with known members of the National Front for the Salvation of Libya (NFSL) while in Canada, and because of his prolonged absence from Libya. Based on its findings of credibility, the Board determined that there was insufficient basis for the applicant to fear persecution from the authorities, should he be returned to Libya.
[4] Second, the Board determined that the applicant could not have a well-founded fear of persecution, if returned to Libya, as he had failed to observe the terms of his scholarship concerning repayment of the cost of his studies abroad. It did so because it found that any interest that the Libyan government may have in the applicant's repayment of his scholarship would not constitute persecution, as defined under the Convention. Finally, the Board also determined, based upon the documentary evidence available to it, that the applicant did not have a well-founded fear of persecution based upon his failure to return to Libya to fulfil an obligation to perform military service. The obligation is mandatory for all citizens of a certain age, and can be substituted for alternative public service. Moreover, the evidence indicated that the applicant's concern that the military, rather than the security apparatus, would be used to suppress religious minorities, was unfounded.
[5] At issue is whether the Board erred in determining that the applicant did not have a well-founded fear of persecution, based upon its finding that the applicant was not credible, as it ignored and/or misconstrued the evidence before it.
[6] Normally, the Court will not interfere with the credibility findings of the Board, which has had the opportunity to observe the applicant's testimony first-hand. As such, the Board is in a better position than a reviewing Court to weigh the credibility of those who testified before it: Rajaratnam v. M.E.I. (1991), 135 N.R. 300 (F.C.A.); Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.); Brar v. MEI (1993), 152 N.R. 157 (F.C.A.). However, in arriving at its findings, the Board must not draw adverse inferences on findings of fact which are manifestly in error: Gracielome v. M.E.I. (1989), 9 Imm. L.R. (2d) 237 (F.C.A.). Moreover, the Board must express its adverse findings concerning credibility in clear and unmistakable terms: Hilo v. MEI (1991), 15 Imm. L.R. (2d) 199 (F.C.A.).
[7] The applicant testified that he had a well-founded fear of persecution as he had been informed by a family friend that the Libyan authorities had visited the applicant's family to inquire about his prolonged absence from the country, and had accused him of having turned against the Libyan government. Moreover, the applicant alleged that his father had telephoned him from Tunisia to inform him that his cousin had been arrested for having had regular telephone conversations with him, and that the applicant's father had been forced to sign a statement which indicated that the applicant was a member of the NFSL. The applicant indicated that the Libyan authorities' interest in him had been aroused by his prolonged absence from Libya, and as a result of his having consorted with known members of the NFSL while in Canada (leading to conversations he had had with other Libyans in Canada in which he had demonstrated an anti-Gaddafi animus).
[8] The Board based its finding of credibility on a number of factors. First, it concluded that the applicant's testimony revealed that he knew very little about the NFSL. The applicant argues that he never said that he was a member of the NFSL, only that he had been suspected of being a member, and as such, the Board misconstrued his evidence. The Board's conclusion is relevant to the applicant's credibility, however, as it indicates that, although the applicant claimed to have had regular contact with NFSL members and had received NFSL literature, he could not demonstrate this experience with any detailed knowledge of the NFSL.
[9] The Board also found an inconsistency between the applicant's claim, contained in his personal information statement, that his father had provided him with names of Libyans to avoid while in Canada, and his inability to provide more than one of the names during his testimony. This conclusion, which was reasonably open to the Board to make: Rajaratnam v. MEI (1991), 135 N.R. 300 (F.C.A.), led the Board to doubt that the applicant's testimony was reliable.
[10] The Board also concluded that it was unlikely that the applicant's father could have been forced to sign a document which implicated his son, but would then be allowed to leave Libya, using his own passport, in order to telephone the applicant with news of the event. The Board based its conclusion on its observation from the documentary evidence that the Libyan authorities may subject the family members of suspected subversives to coercion, or persecution. The applicant argues that the evidence equally demonstrates that the authorities would not bother the applicant's family. However, the Board's observation was reasonably open to it to make, based upon the record: Miranda v. MEI (1993), 63 F.T.R. 81 (F.C.T.D.).
[11] The applicant argues that the Board erred in concluding that, as the Libyan authorities would not have renewed the applicant's passport in 1994 if they suspected him of opposing Gaddafi, his story was not credible. The applicant argues that the Libyan authorities did not become interested in him until later. While the applicant's explanation for the passport being renewed is equally plausible, it is not the role of the court to substitute its findings for those of the Board, unless the Board was manifestly in error in making them: Oduro v. MEI (92-A-7171, 2 June 1993, F.C.T.D.); Castro v. MEI (T-2349-92, 5 August 1993, F.C.T.D.).
[12] Finally, the Board concluded that the applicant's story, that the Libyan authorities had coerced his father into signing a document implicating the applicant in order to apprehend him upon his return, was not credible as the documentary evidence indicated that the Libyan security apparatus normally conducted its operations in secret, and often beyond the extent of the law. This finding was also clearly open to the Board to make, based upon the record before it: Rajaratnam, supra.
[13] The applicant argues that the Board erred in ignoring documentary evidence which indicates that students suspected of being opposed to the regime may be apprehended upon return. However, the Board determined that the applicant's evidence that he was suspected by the Libyan authorities was not to be believed. As such, the documentary evidence referred to by the applicant does not appear to have been ignored. Rather, the Board determined that it did not apply to the applicant's case.
[14] Accordingly, the application shall be dismissed.
[15] The parties did not propose a question for certification.
OTTAWA, ONTARIO B. Cullen
April 21, 1998. J.F.C.C.