Date : 20040615
Docket : IMM-2264-03
Citation : 2004 FC 857
BETWEEN :
MOHAMED NISSAR LODHI
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("the Board") dated March 10, 2003 wherein it determined that Mohamed Nissar Lodhi ("the Applicant") is not a Convention refugee and is not a person in need of protection. The Applicant seeks an order from this Court setting aside that decision and referring the matter back for redetermination by a differently constituted panel of the Board.
[2] The Applicant is a forty-five year-old citizen of Tanzania. He arrived in Canada on November 4, 2001, and made a refugee claim on April 19, 2002. A hearing was held on February 10, 2003, and on March 10, 2003, the Board determined that the Applicant was not a Convention Refugee or a person in need of protection.
[3] The Applicant alleges a well-founded fear of persecution and that he is a person in need of protection based on his political opinion, his membership in the Civic United Front ("CUF"), as well as his medical condition of being HIV positive.
[4] The Applicant alleges that in 1999 he became a member of the CUF, attended meetings, recruited new members and actively campaigned for the party in the 2000 elections. Due to his CUF activities, the Applicant alleges that he was targeted by the Tanzanian authorities, then arrested on October 20, 2000 and detained for three days. He states that his voter card was taken away, he was deprived of sleep and food and told that he should avoid the voting stations. While the Applicant was in detention, he alleges that his father and brother were also harassed and intimidated.
[5] On July 14, 2001, the Applicant alleges that he was arrested for scandalizing government officials by accusing them of corruption. Further, the Applicant alleges that he was detained for a week, during which he was beaten, deprived of sleep, threatened, and slapped. He also stated that he was deprived medication and treatment for malaria, which he had developed while in custody. Before being released, the Applicant alleges that he was seriously threatened and was warned that his Tanzanian citizenship could be taken away.
[6] In August 2001, the Applicant applied for a Canadian visitor's visa. He continued to work as a manager for the Arkadia Mining Broker until October 2001, when he was advised by his brother that the visa was issued. In late October 2001, the Applicant returned to Dar-es-Salaam and made arrangements to flee to Canada.
[7] The Applicant arrived in Canada on November 4, 2001 and filed his refugee claim on April 19, 2002. After his Personal Information Form ("PIF") was filed on May 21, 2002, the Applicant learned that he was HIV positive.
[8] The Applicant alleges that his medical status has exacerbated his fear of persecution, since HIV positive people are ostracized by their friends and family, face discrimination in every facet of their lives and are unable to obtain quality health care.
[9] The Applicant gave evidence at the hearing of his claim through his original PIF, an amended PIF narrative and by way of oral testimony. Additionally, the Applicant submitted documents to the Board concerning the country conditions in Tanzania.
[10] The Board held that the determinative issues in the Applicant's case were credibility, personal identity, discrimination versus persecution and whether his alleged fear is objectively well-founded.
Subjective Fear - Credibility
[11] The Board found that the Applicant was neither a credible nor a trustworthy witness. The Applicant alleges that the Board erred in making a negative credibility finding by misstating or misapprehending the evidence before it, failing to properly weigh the evidence and ignoring certain aspects of the evidence before it.
[12] In its reasons, the Board outlined a number of concerns it had regarding the Applicant's credibility and concluded that, on a balance of probabilities, the Applicant was not a member of the CUF nor was he targeted and detained for his CUF involvement.
[13] Firstly, the Board noted that the Applicant had given conflicting evidence regarding when he joined the CUF and had no knowledge of the CUF's activities. Secondly, the Board drew an adverse inference with respect to the Applicant's fear of persecution based on the significant delay between when the Applicant arrived in Canada and when he made his claim for refugee protection. The Board found the Applicant's explanations for this lag in time unreasonable. Thirdly, the Board found it implausible that someone who was truly being targeted by the authorities would risk his life by continuing to work at the same place for almost three months before fleeing the country. Furthermore, the Board was not satisfied that the Applicant had provided consistent evidence regarding his occupation and how he managed to work after allegedly being detained in July 2000.
[14] The Respondent submits that the findings regarding the credibility and plausibility of the Applicant's allegations were reasonably open to the Board based on the evidentiary record and that this Court should be reluctant to intervene in the Board's credibility findings, which are the heartland of its discretion as the trier of fact.
[15] The Respondent raises four specific issues which the Board found reflected negatively on the Applicant's credibility:
(1) the Applicant gave conflicting evidence regarding when he joined the CUF;
(2) the Applicant's testimony regarding the peace agreements reached by the CUF conflicted with the documentary evidence, thereby revealing a lack of knowledge of the CUF;
(3) the Applicant waited five months after his arrival in Canada to make a refugee claim; and
(4) the Applicant gave inconsistent evidence regarding his occupation and his ability to work at the same mining firm for three months when the authorities were targeting him.
[16] I agree with the Respondent that there is no basis for this Court to interfere with the Board's negative credibility finding.
[17] First, the Applicant concedes that he gave inconsistent evidence regarding the date he joined the CUF.
[18] Secondly, in my view, it was open to the Board to find that the Applicant's testimony regarding peace agreements between the CUF and the governing Chama Cha Mapinduzi (CCM) conflicted with the documentary evidence and therefore revealed a lack of knowledge of the CUF's activities. Although the Applicant claims to have been testifying about a 1999 peace agreement, and not the October 2001 accord between CUF and CCM, he did state in oral testimony that no peace agreements had been reached before or since between the parties. Documents before the Board referred to the October 2001 peace agreement, Applicant counsel's questioning did not refer to a date, and referred to the current situation in Tanzania, implying that the October 2001 peace agreement was the subject of the discussion. In my view, it was not patently unreasonable for the Board to adopt the view it did, given the evidence and testimony before it.
[19] I also find no merit in the Applicant's argument that the Board unfairly characterized his evidence that the current peace treaty was reached by "interference" from the international community. It is not my function, sitting on judicial review, to dissect the Board's use of particular language or its re-wording of a witness' evidence. It is clear to me that the Board captured the essence of the Applicant's evidence and did not err in this regard.
[20] Thirdly, I cannot agree with the Applicant that the Board fatally erred by not mentioning his evidence that illness prevented him from filing his refugee claim sooner. The Board was entitled to reject the Applicant's explanations of the five month gap between his arrival in Canada and the filing of his claim as unreasonable and incompatible with a subjective fear of persecution. As I read the Board's decision, its conclusion was that if the Applicant had truly fled Tanzania with a subjective fear of persecution, there simply would not have been the lag of time seen in this case. It would be an overly microscopic examination of the Board's reasoning to adopt the position urged by the Applicant on this issue. The Board is presumed to have considered all the evidence before it, including the Applicant's statements regarding illness. In my view, this presumption has not been rebutted in the circumstances of this case.
[21] Fourthly, there is no basis for this Court to intervene with respect to the implausibility and negative credibility findings about the Applicant's occupation and ability to work between August and October 2001. The port of entry interview notes state that the Applicant was an auto mechanic, which contradicts other evidence that was before the Board. The original PIF narrative filed by the Applicant was incomplete. While I may not have reached the same conclusions if I had been the decision-maker below, the Board's conclusions are reasonably supported by the evidence. Furthermore, these issues were not central to the Board's findings or reasoning.
Objective Basis for the Applicant's Claim
[22] The Applicant argues that the Board erred in concluding that conditions for CUF members had changed significantly and that any fear of persecution was no longer objectively well-founded. After noting specific documents which suggested an improvement in the treatment of CUF members in Tanzania, the Board stated:
"...there is no evidence before me that either supporters of the CUF or their families are currently targeted by reason of their political opinion. Based on the forgoing, the panel finds that the changes are sufficiently meaningful to conclude that the claimant's fear of persecution is Tanzania is not objectively well-founded."
[23] The Applicant submits that while there has been some change in country conditions, the police continue to be corrupt and the government has not altered its view that the police should dictate whether political demonstration should be permitted. In essence, the Applicant is asking this Court to re-weigh the evidence regarding a change in country conditions and to reach a different conclusion than that reached by the Board below. Again, the Applicant has not convinced me that the Board's finding of fact regarding changed country conditions was in any way perverse or made without regard to the available evidence. Its finding must, therefore, stand.
Claim Based on HIV Positive Status
[24] After his arrival in Canada, the Applicant discovered that he was HIV positive. He revised his refugee claim to include an allegation that he met the definition of a Convention refugee because, if returned to Tanzania, proper medical treatment would be unavailable and he would be ostracized and stigmatized for his HIV status. The Board concluded that there was no persuasive evidence that the lack of proper treatment for HIV, when compared to Canada, constitutes persecution within the meaning of the Convention refugee definition. Furthermore, the Board was unconvinced that the harassment and stigma described by the Applicant amounted to persecution as opposed to mere harassment. The Board concluded that there was "no credible or trustworthy evidence that people who are diagnosed HIV positive are being singled out and targeted in Tanzania". The Board went on to note that the Applicant was not a "person in need of protection" on the basis of his HIV status, since inadequate medical care was an explicit exception to this category of persons.
[25] The Applicant does not take issue with the Board's conclusion that lack of proper medical treatment in Tanzania does not constitute persecution within the Convention refugee definition. Instead, the Applicant submits that the Board erred in concluding that the persistent discrimination he would face if returned to Tanzania, especially as a CUF member, would constitute persecution. The Applicant disagrees with the Board's statement that his testimony on this issue was general or inappropriately hypothetical. He alleges that the stigma in the Muslim community, combined with the general Tanzanian society's ignorance and superstition regarding HIV status, would lead to him being denied employment, the freedom to practice his religion and other pervasive effects.
[26] Again, I must agree with the Respondent that the Board considered the totality of the evidence before it, including the Applicant's testimony and documentary evidence and reasonably determined that there was not a serious possibility that the Applicant would face persecution if he were to return to Tanzania. The Board acknowledged that acts of discrimination may take place, but concluded that there was no trustworthy evidence that the conduct would rise to the level of persecution. In reaching this conclusion, the Board was alive to the possibility that in some instances, discrimination can cumulatively amount to persecution and that Convention refugee protection would be appropriate in such cases. On the facts of this case, however, it was certainly reasonable for the Board to reach the conclusion it did. While the line between discrimination and persecution can be a difficult one to draw at times, I am not persuaded that the Board's decision on this issue demands the intervention of this Court.
[27] Furthermore, I cannot agree with the Applicant that the Board erred by failing to consider the potential intersection of his claim based on political opinion and his HIV status. While it is true that the Board did not analyse the effect of the fear of detention on someone whose immune system is compromised by HIV, I am of the view that it was not required to do so. The Board had already rejected both the subjective and objective components of the Applicant's claim based on political opinion. Consequently, there was no potential intersection of Convention grounds to consider since the Board did not believe that the Applicant was a member of the CUF or that it was reasonable for him to fear persecution on this basis.
[28] As the Applicant has not disputed that he is not a "person in need of protection", I would not disturb the Board's finding on this issue.
[29] As such, I am of the view that this Court's intervention is not warranted. This application for judicial review is therefore dismissed.
JUDGE
OTTAWA, Ontario
June 15, 2004
FEDERAL COURT OF CANADA
Name of Counsel and Solicitors of Record
DOCKET: IMM-2264-03
STYLE OF CAUSE: MOHAMED NISSAR LODHI v. MCI
DATE OF HEARING: June 2, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT: Rouleau, J.
DATE OF REASONS: June 15, 2004
APPEARANCES BY: Ms. Mary E. E Boyce
For the Applicant
Ms. Neeta Logsetty
For the Respondent
SOLICITORS OF RECORD: Mr. Kumar S. Sriskanda
Barrister & Solicitor
69 Elm Street
Toronto, Ontario M5G 1H2
For the Applicant
Ms. Neeta Logsetty
Solicitor General of Canada
For the Respondent