Date: 19991013
Docket: IMM-5210-98
BETWEEN:
SAMIR AIT MOHAMED,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
ROULEAU, J
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated September 21, 1998, wherein the Refugee Division determined the Applicant was not a Convention Refugee.
[2] This matter was heard in Montreal in the french language and the decision was rendered in the french language and the matter was argued before me at Vancouver in english with the benefit of an english translation of both the decision and the transcript of the hearing before the Board of Refugees.
[3] The Claimant is a Citizen of Algeria who arrived in Canada the 22nd day of October, 1997; he arrived on a tourist visa but did not claim refugee status until the 5th of November, 1997.
The Decision
[4] The panel rejects the Claimant"s claim to claim refugee status by reason of implausibility and lack of credible. Indeed, the Claimant"s account of his experience is contradictory, implausible and hardly credible. As was stated in the case of Aguebor v. Ministre de I"Emploi et de I"Immigration (1994), 160 N.R. 315 at 316, Mr. Justice Décary writing from the court said the following:
| 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 that 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. |
The same principle is repeated by Mr. Justice MacKay in Akinlolu v. Minister of Citizenship and Immigration wherein he states at page 5 of the decision:
| Questions of credibility and weight of evidence are for the CRDD panel in considering refugee claims. Thus, the panel may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence or it is found to be implausible... this Court will not intervene unless it is satisfied that the panel"s conclusion is based on irrelevant considerations or that it ignored evidence of significance. In short, its decision must be found to be patently unreasonable on the basis of the evidence before the panel. |
[5] Counsel for the Applicant has pointed out to me that one should determine if the Board"s decision was based on an erroneous findings of fact which are unreasonable on the basis of the evidence. The inferences are of a type which are based on the common experience of mankind, and, the court, as Mr. Justice MacGuigan said in Soto Giron , is in an equally good a position to make it as the tribunal.
[6] At page one of the decision the Refugee Division wrote the following:
| On question 17, the Claimant indicated that he completed his law school in 1991 at the Constantine University. However, at the hearing, he stated that he dropped out of law school because there were problems in his country; but he did not elaborate on that point. |
Counsel alleges that this finding is perverse, at page 18 of the translated transcript, he points out to me the following questions and answers:
| Q. Well, Mr. Samir, you have... According to your declaration of... Your form there, which you have just recognized, it seems to show that you are a university graduate in law. Is that correct? Did you obtain your degree? |
| A. I did not complete my studies right to the end. |
| Q. Why, Sir? |
| A. Because I had problems in 1991. |
| Q. What problems, Sir? |
| A. The problems that are well known, the demonstrations. I was afraid, so I left. |
It was clear to me that he did elaborate the point contrary to what the panel found.
[7] On question 18, he stated that he had worked in interior decoration in his spare time. At the hearing he said he had a job. He painted walls from 1994 to 1997 for a single employer. The panel wrote as follows:
| He did not even provide the name of his employer. When the panel asked the claimant to state what his work experience was between 1994 and 1997, he said he painted walls for a single employer beginning in 1994. No documentary evidence was provided to the panel to that effect. The panel finds this story lacking in credibility. |
At page 20 of the translated transcript the following questions and answers can be found:
| Q. When you speak of... You worked in the decorating field. What exactly did you do in your spare time? |
| A. I did painting. |
| Q. Painting like an artist or house painting, wall painting? |
| A. Painting houses, walls. |
| Q. Painting houses. Were you self-employed or did you work for someone? |
| A. No, I worked in the house of a private individual, or a private individual. |
| Q. Yes, but in what... For a period of three years, you put down: "I did decorating." Did you work for the same person for a three-year period? |
| A. Yes, the same person. |
| Q. The same person, for a period of three years? |
| A. Yes. |
| Q. What is the name of that person? |
| A. Mohamed Benabdallah. |
And he spelt out the name for them. To suggest that he did not provide the employers name is completely contradictory to the transcript; as well the panel found that his story lacked credibility because he provided no documentary evidence with respect to his employment is also perverse. No questions were asked with respect to providing documentary evidence with respect to his employment.
[8] On question 37, the claimant recounts that he had an altercation with an Armed Islamic Group (AIG) sympathizer who were well known in his district. In the decision the panel wrote:
| "If an AIG sympathizer attacked his family, burning his sister"s hair because she did not wear the hijab , and the complaint he lodged with the local authorities was not acted on, as he testified in the hearing, then panel finds his account of having attacked the AIG sympathizer to be implausible." |
[9] At page 38 of the translated transcript, after discussing that he had gone to the police station reporting the incidents that occurred at his home where his sister"s hair had been burnt and referring to the people that attacked him. He explains as follows in the trascript:
| I even told them where they could find him, and they told me that they would deal with the matter, because they had other priorities. And after a few days, I met him by chance outside, in front of the market known as the Covered Market. |
Page 29, in his narrative about meeting the hoodlums who had attacked his sister he stated:
| A. I ran into him in front of a market that was called the Covered Market. This market is in the downtown area. So I went over to speak to him. I spoke to him rather severely. I asked him why he had done that and who he thought he was to be able to do that. He said to me that we were unblievers: "You are the followers of France, and you have to leave this place. You have no right to remain here because you do not want to follow our instructions regarding the hijab . |
| And when I continued to discuss with him, he tried to hit me. So I started fighting with him. There were a great many people in front of the market, and they separated us. Afterwards, I went back home. |
To suggest in their decision that he went looking for the AIG sympathizers is impossible based on the evidence and his testimony before the panel as well as his written narrative which was found in his P.I.F.
[10] What was central to this particular application, has been totally over looked or given a very cursory analysis by the panel. There is no doubt that there are so many patently unreasonable findings of facts in the written decision which are not supported by the evidence that I am satisfied that this entire decision is tainted and should be returned for a re-hearing before a newly constituted panel.
[11] The application is granted.
(Sgd.) "P. Rouleau"
Judge
October 13, 1999
Vancouver, British Columbia
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5210-98
STYLE OF CAUSE: Samir Ait Mohamed
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 8, 1999
| REASONS FOR ORDER OF Rouleau, J |
DATED: October 13, 1999
APPEARANCES:
| Mr. Ryan Strong For the Applicant |
| Mr. Victor Caux For the Respondent |
SOLICITORS OF RECORD:
Rankin & Associates
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |