Date: 20000314
Docket: IMM-1221-99
BETWEEN:
ALI ADJI MAINA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
Introduction
[1] These reasons arise out of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that phrase by subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 29th of January, 1999.
[2] At the close of the hearing before me, I dismissed the application and gave brief oral reasons. These reasons are an elaboration of my oral reasons and are filed pursuant to section 51 of the Federal Court Act2.
Background
[3] The applicant is a citizen of Chad, born in 1976. At the time of the hearing before the CRDD, the applicant"s wife, parents and four siblings remained in Chad. The applicant testified before the CRDD that he was close to an uncle who was active in the Movement for Development and Democracy (the "MDD") in Chad. By reason of his activity in the MDD, the applicant testified that his uncle was forced to flee Chad. The uncle nonetheless remained active in the MDD.
[4] The applicant testified before the CRDD that, on the 3rd of September, 1997, a messenger from his uncle arrived at the door of the applicant"s home with a note from the applicant"s uncle requesting that the applicant provide shelter for the messenger for a few days. Within a few minutes following the arrival of the messenger, members of the Agence Nationale de Sécurité (the "ANS") arrived at the applicant"s home and arrested the applicant and the messenger. The applicant attested that he was detained for some three months, accused of being a member of the MDD, interrogated, and beaten. The applicant only escaped detention following payment of a bribe by the applicant"s father. Immediately following escape from detention, the applicant went into hiding for some two weeks and then fled Chad, eventually arriving in Canada on the 3rd of January, 1998. Upon arrival here, the applicant filed a Convention refugee claim, basing his claim on his perceived political opinion and his membership in a particular social group, namely his family, including his uncle.
The Decision of the CRDD
[5] The CRDD accepted the applicant"s identity but found him not to be credible. In support of its credibility finding, the CRDD cited a discrepancy between port of entry notes apparently completed by the applicant and signed by him and his oral and written testimony. In particular, the CRDD noted that the applicant responded "no" in the port of entry notes to a question as to whether or not the applicant had ever been incarcerated in Chad.
[6] The CRDD further relied on the failure by the applicant to provide an attestation that his uncle was a member of, and active in, the MDD when the applicant was provided an opportunity to obtain such an attestation following the hearing before the CRDD. In fact, the only attestation obtained and provided to the CRDD indicated nothing more than that the applicant would be at risk if he were returned to Chad, based on the sole reason that he had contacted the MDD to obtain an attestation. The CRDD rejected the urgings of counsel for the applicant that, by reasons of the contact with the MDD, the applicant was entitled to a finding that he is a Convention refugee by reason of a new-found "sur place" basis to his claim.
The Issues
[7] Counsel for the applicant identified the issues on this application for judicial review as follows: whether the credibility finding of the CRDD was perverse as it related to inconsistencies and implausibilities in the evidence provided by the applicant and, in particular, between the port of entry notes and the written and oral testimony of the applicant; failure of the CRDD to address the "sur place" claim; and denial of natural justice and procedural fairness through failure of the CRDD to provide the applicant with an opportunity to address the panel"s concerns.
The Oral Reasons
[8] The following is a edited version of the oral reasons that I gave at the close of the hearing before me.
| I am not satisfied that any of the findings regarding credibility, and particularly the one surrounding the port of entry notes, is perverse or capricious or made without regard to the material before the CRDD. |
| It was open to the CRDD to reject the explanation given by the applicant for the simple "No" regarding incarceration in "this" country, "ce pays". |
| As I indicated during counsel"s presentation, whether he or I might have been more generous regarding the explanation that the applicant provided is not the question. The question is: was rejection of the explanation perverse or capricious or without regard to the material before the CRDD, and I am simply not satisfied that it was. I am in agreement with counsel for the applicant that the finding of discrepancy between the port of entry notes and the oral and written testimony of the applicant was a central finding on the part of the CRDD and, one could argue or infer, all of the other credibility concerns noted by the CRDD simply served to bolster that finding and, to some extent, flowed out of that finding. I reach that conclusion. |
| Regarding the attestation from the MDD, the applicant was present before the panel, with counsel, and presumably the applicant and counsel were both aware of the concern of the panel regarding whether or not the applicant"s uncle was really a member of the MDD or, perhaps more importantly, a significant player in that organization, because the relationship between the applicant and his uncle, combined with the uncle"s involvement with the MDD was certainly central to the applicant"s claim. |
| The attestation which was provided to the CRDD through counsel clearly did not address the CRDD"s concern. It did raise the possibility of a sur place claim. Counsel submitted the attestation to the CRDD, did note in submitting it that it failed to address the CRDD"s concern, did not seek a further opportunity to bolster the attestation, and did not note or draw to the attention of the CRDD the possibility that the attestation itself provided a new basis for the claim that had not been addressed during the hearing, namely, a sur place basis. Instead, counsel purported to transfer to the CRDD the onus to reopen the hearing. In effect, counsel advised the CRDD to get in touch with him if it considered reopening necessary. It was not up to the CRDD to consider reopening without a request from counsel to do so. Put another way, there was no breach of natural justice or fairness in the fact that, in all of the circumstances, the CRDD did not take the responsibility on itself to reopen hearing. |
| In a similar vein, counsel did not request an opportunity to address the potential new sur place basis to the claim. Without such a request, the CRDD made no reviewable error in addressing the sur place issue in its reasons without reopening. |
Conclusion
[9] For the foregoing reasons delivered orally and here slightly edited, I dismissed this application for judicial review. Neither counsel recommended certification of a question. No question was certified.
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J.F.C.C.
Ottawa, Ontario
March 14, 2000
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