Federal Court Decisions

Date: 20020125

Docket: IMM-281-01

Neutral Citation: 2002 FCT 92

Ottawa, Ontario, this 25th day of January, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                    CONFIDENTIAL

                                                                                                                                                       Applicant

                                                                              - and -

                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review brought pursuant to subsection 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 of a decision of the Convention Refugee Determination Division (the "CRDD") dated January 2, 2001 [the written decision is actually dated December 29, 2000]. In its decision, the CRDD found the applicant not to be a Convention refugee.

[2]                 The applicant is a citizen of Libya who came to Canada to make a Convention refugee claim in August of 1999. As explained in his Personal Information Form (PIF), the applicant's family owns property in Tripoli, Libya, including a garage for which his father gave the applicant authority to sell or rent. In the later part of 1998, the applicant rented this garage to Mr. Rajab, a man for whom the applicant had worked for at a workshop.

[3]                 The applicant claims approximately three months after renting the garage, Libyan Security officials arrested Mr. Rajab at his home at 2:00 a.m. and then took him to the rented garage at around 5:00 a.m. At 6:00 a.m., a friend of the applicant who witnessed the scene at the rented garage, phoned the applicant to inform him of what had happened. The applicant learned that Mr. Rajab had been keeping weapons (Khalishnikovs) in the garage and that the applicant's name had been given to security officials by Mr. Rajab. While the applicant stayed away from Tripoli by visiting in El-Amamra, Libyan officials went to his home to question his father.

[4]                 The applicant, after discussing the situation with his father and other friends of the family, decided to come to Canada as a student and received a letter of acceptance from a Canadian university in July, 1999. To receive his visa, the applicant sneaked across the border for an interview at the Canadian Embassy in Tunisia on July 29, 1999 with the help of others.    On the last day of July, the applicant returned to Libya, again, with the help of others. The applicant indicated in his PIF and at the hearing that he had obtained a passport by way of bribes in April of 1999. The passport was issued in the applicant's name. On August 6, 1999, the applicant, once again with the aid of others, was able to pass through an airport in Libya and board a flight for Canada.

[5]                 The applicant claims that since arriving in Canada, he learned through his brother that Libyan security is still searching for him. He suspects Libyan authorities would not hesitate in killing him. The applicant states he knows nothing of the arms found in the garage he rented. He further states that he opposes the Libyan government's methods but that he never said anything out of fear.

[6]                 The applicant's claim was heard by two panel members of the CRDD on September 9 and December 12, 2000. In an oral decision dated December 15, 2000 and written reasons thereafter dated December 29, 2000, the applicant was found not to be a Convention refugee. The CRDD, in its reasons of December 29, 2000, concluded as follows:

So we find, on looking at this whole case, that it seems to have been manufactured for the purpose of this refugee claim and that we don't believe any part of it. It is simply implausible. The answers were not reasonable and the claimant was not credible.

So we do not find that his claim was well founded, that any of these incidents took place, and we find, therefore, that there is no more than a mere possibility that he would face persecution on a Convention ground if he were to return to his country.

[7]                 Issue

Should the decision of the Convention Refugee Determination Division be set aside?

[8]                 Law

Subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 states:

"Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;

« réfugié au sens de la Convention » Toute personne_: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.

[9]                 Analysis and Decision

The CRDD found the applicant not to be credible and outlined its reasons for the finding of non-credibility. Generally speaking, if a Board makes a non-credibility finding and gives clear examples from the evidence for that finding, this Court will not interfere with the finding. The Board can, however, make errors that will give the reviewing Court authority to review the non-credibility finding made by the CRDD. In Zalzali v. Canada (Minister of Employment and Immigration) (1991) 14 Imm.L.R. (2d) 81 (F.C.A.), Decary, J.A. stated at page 83:

One of the points used by the Refugee Division as a basis for questioning the appellant's credibility is the fact that he did not leave Lebanon until "about four months" after receiving death threats. The evidence disclosed, and counsel for the respondent conceded this point, that the appellant left Lebanon two days, not four months, after receiving these threats. This is a gross error in the assessment of the evidence, an error which clearly had a decisive influence on the Refugee Division, which made it twice. This type of error gives this Court authority to review the non-credibility finding made by the Refugee Division.

[10]            The applicant in the present case submits that the CRDD made errors in assessing the evidence when making its finding of non-credibility. The errors allegedly made were:

1.          The CRDD in its decision at page 3 found that the applicant received a phone call three months after leaving, informing him that Mr. Rajab who had leased his garage, had been arrested. A review of the file material shows that the phone call was received at 6:00 a.m. on the morning of the arrest.

2.          The CRDD also found as a fact at the hearing that the applicant received all of his information about the arrest from public knowledge, which had been indirectly obtained through Mr. Rajab's wife having spread information that she had been told. A review of the record shows that this is not correct as the applicant received the details about the arrest from his friend, Ehemed Al Shivani.

[11]            In my opinion, this is the same type of situation as occurred in Zalzali, supra. The Board based its findings of non-credibility on facts that were not correct. As a result, the decision of the Board must be set aside and the matter remitted to a different panel of the Board.

[12]            Because of my finding on the credibility issue, I need not deal with any other issues regarding the Board's decision.

[13]            Neither party wished to submit a serious question of general importance for consideration.

ORDER

[14]            IT IS ORDERED that the application for judicial review be allowed and the matter be remitted to a different panel for reconsideration.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

January 25, 2002