Date: 19990429
Docket: IMM-1437-98
Between :
Abd El Aziz ALY BASHA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated March 10, 1998, in which the Board rejected his Convention refugee claim finding that there was insufficient credible and trustworthy evidence to conclude that he had established a well-founded fear of persecution for reasons of religion or any other Convention ground.
[2] The Board based its decision on the following elements:
| - the fact that the applicant was able to secure a passport without difficulty; |
| - it preferred the evidence from Jehovah's Witnesses organizations in Canada and the United States to the testimonial evidence of the applicant; |
| - the restrictions to religious freedoms in Egypt do not amount to persecution; |
| - the fact that the applicant's brother, Arafa, picked up a government pension for ten years all the while alleging that he had been in hiding from the I.S.I.S. (Egyptian Intelligence) since 1984; |
| - the fact that it concluded Arafa's mistreatment was much earlier than 1994; |
| - the delay of three years in the applicant's flight from Egypt. |
[3] As regards findings of credibility, it is well established that it is a question of fact that is entirely within the jurisdiction of the Board as the trier of fact. The panel is free to find that an applicant is untrustworthy on the basis of implausibilities in his or her testimony, provided that its findings are not unreasonable (Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)) and that its reasons are set out in "clear and unmistakable terms" (Hilo v. M.E.I., 15 Imm.L.R. (2d) 199 (F.C.A.)). A reviewing court cannot therefore interfere with the Board's findings of fact unless the panel reached its decision in a perverse or capricious manner or without regard for relevant evidence submitted to it. Furthermore, the burden on an applicant to rebut the Board's finding that he or she lacks credibility is very heavy. Finally, in cases involving the identification of persecution behind incidents of discrimination or harassment, the Federal Court of Appeal in Sagharichi v. M.E.I. (1993), 182 N.R. 398, stated that the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable.
[4] Upon reviewing the evidence, and upon considering that the Board was entitled to rely on documentary evidence in preference to that of the claimant (see M.E.I. v. Zhou (July 18, 1994), A-492-91 (F.C.A.)), I have not been satisfied, in spite of the able presentation of counsel for the applicant, that the Board, which is a specialized tribunal, could not reasonably conclude as it did.
[5] As for the question of bias raised before me, by reason of the attitude of the presiding member of the Board when he asked the applicant questions of a religious nature, I am not satisfied that an informed person, viewing the matter realistically and practically - and having thought the matter through - would conclude to a reasonable apprehension of bias in the case at bar, as set out by de Grandpré J. in Committee for Justice and Liberty v. The National Energy Board, [1978] 1 S.C.R. 369 at 394.
[6] Consequently, the application for judicial review is dismissed.
[7] Counsel for the applicant submitted the following question to be certified:
| Does an order granting an application for leave under section 15(1)(c) of the Federal Court Immigration Rules, 1993, which specifically provides for "further affidavits, if any" entitle Applicant to introduce evidence which was not before the Board, such as, but not limited to: |
| a) updated information regarding the situation in the country of origin. |
| b) information which was not before the Board but which goes to questions of natural justice. |
| c) correction of material before the board which was inaccurately translated. |
| d) caselaw containing details relevant to the case but rendered after the hearing. |
| e) additional information regarding facts already before the Board. |
[8] In view of the fundamental principle of judicial review that this Court can only review evidence that was before the original trier of fact, and given the particular circumstances of this case, the proposed question, as drafted, ought not to be certified.
JUDGE
OTTAWA, ONTARIO
April 29, 1999