Date: 20000322
Docket: IMM-1097-99
Between:
Mahmoud ABBACE
APPLICANT
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
RESPONDENT
REASONS FOR ORDER
LEMIEUX J.
Introduction
[1] This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "panel") dated February 10, 1999 denying the applicant refugee status on the ground that he "[Translation ] has failed to demonstrate in a credible and trustworthy way a reasonable fear of persecution for the reasons cited".
[2] Mr. Mahmoud Abbace (the "applicant") is a citizen of Algeria who is claiming refugee status, alleging a well-founded fear of persecution because of actual or alleged political opinions that a terrorist group in his country believes he espouses.
Panel"s decision
(a) Facts as alleged
[3] The panel recites the following facts as reported by the applicant. The applicant is a computer technician employed since 1991 in the water production, management and distribution facility in Annaba, Algeria.
[4] In 1997, the applicant was designated by his company to accompany a group of Americans responsible for a project sponsored by the World Bank during the week of February 21 to 27. On February 23, the applicant received a telephone call at work urging him to supply a work plan for his visitors and the duration of their stay; a reply was demanded by 5:00 p.m., failing which he was threatened with execution.
[5] Following this call, the applicant contacted security at the facility; a fake work plan was prepared and security measures were reinforced. That day, at around 4:30 p.m., the first caller informed him that he was a traitor and hung up without taking the information solicited a few hours earlier.
[6] In April 1997, upon returning from a practicum in the United States, the applicant learned that in his absence he had received numerous telephone calls. On April 20, he answered a call from an angry individual who accused him of being an agent of military security, condemned him to death and announced to him the written receipt of this verdict.
[7] The applicant then informed his manager of the situation and on that date left his place of residence to go into hiding in a staff house; from that time on, the applicant submits, his life became a nightmare.
[8] At the time, the applicant had a U.S. visa which was valid until June 18, 1997. Since his employer had granted him a leave from May 10 to August 25, 1997, the applicant left his country for the United States, where he took courses in English and informatics. He always remained in regular contact with his family, who informed him of the killings that were occurring in Algeria.
[9] In August 1998, the applicant set September 1, 1998 as his date of return and telephoned his father to advise him of his return. On this occasion he was told by his father that one of his brothers, who was actively involved in politics, had been sentenced to death by the terrorists.
[10] On August 20, 1998, the applicant received a fax from a friend informing him that a death sentence had been issued against him by the terrorists. The applicant consulted a lawyer who recommended that he seek refuge in Canada. He crossed the border on August 24, 1998.
(b) Panel "s findings
[11] As noted, the panel was of the opinion that the applicant has failed to demonstrate in a credible and reliable way a reasonable fear of persecution on the grounds he cited, i.e. "[Translation ] because of political opinions that are real or alleged by the terrorists of his country".
[12] The panel focuses its analysis on the applicant"s receipt of a fax dated August 20, 1998 because he "[Translation ] states there was never any question of not returning to his country" before he received this fax. In the panel"s opinion, the claimant"s asylum claim is based on this document, filed as evidence, that had been sent by a neighbour eleven days prior to the date set for his return to Algeria.
[13] This fax, filed as exhibit B-15, reads as follows:
| [Translation] |
| Mahmoud, |
| I would like to inform you of a thing that will no doubt you will not like, but.... |
| Your father received a "death" threat letter from the armed Islamic groups, in addition to the letter that your brother "Hassan" previously received. He had to leave the house for the southern "Hassi Messaoud" where he hopes to find security and employment. The distressing thing about this affair is the security operation in the Annaba Wilaya, which is not taking this piece of news seriously on the pretext that the letter did not bear any official seal proving the identity of the sender [destinateur -- sic]. Your father reported to the security services as soon as he had received it. |
| I am very worried about you; that is why I wrote to you as soon as I could. I know that I am causing you some problems abroad. These armed groups have condemned you to death: the day you set foot in Annaba or in any town in Algeria, you can imagine what will happen if you return. |
| I beseech you, give it the thought it deserves and analyze the whole situation as someone in the know. You must take the content of this letter seriously. |
[14] The death threat letter, exhibit E to the applicant"s affidavit in support of his application for judicial review, reads as follows:
| [Translation] |
| IN THE NAME OF GOD |
| WARNING |
| THE ARMED GROUP (EASTERN ZONE OF ANNABA) CONDEMNS TO DEATH THE MAN NAMED ABBACI MAHMOUD, DOMICILED IN THE SI BOUSSE WARD, AT BOULEVARD MOKHTARI IBRAHIM, FOR HAVING ASSISTED THE STATE APPARATUS. HE IS THEREFORE RESPONSIBLE FOR THE DEATH OF SOME OF OUR VALIANT COMBATANTS. THE LATTER WERE WORKING TO STRENGTHEN OUR RELIGION AND ERADICATE THE ROOTS OF EVIL AND DEPRAVITY. |
| THE ARMED GROUP WILL PURSUE YOU WHEREVER YOU ARE FOR THE EXECUTION OF THIS LAWFUL JUDGMENT. |
| SATURDAY, 01 AUGUST 1998 |
| THE ARMED GROUP |
| (EASTERN ZONE OF ANNABA) |
[15] The panel notes that the applicant learned through this fax that his father had received, on the first of the month, a letter from the GIA condemning him to death. But the panel detects an improbability since his father, in a telephone call during August 1998, had informed him that one of his brothers, who was active in politics, had been forced to leave his place of residence because of death threats, but had not mentioned the death sentence likewise hanging over the applicant. The panel then draws the following conclusion:
| [Translation] Under questioning, the claimant explained the omission of this crucial event by the fact that his father was trying to protect him, which seems improbable in the circumstances when the claimant, who is safe from threats outside his country, is preparing to return undeterred by the fate the GIA has in store for his own brother. |
[16] The fax of August 20, 1998 mentions that his father had turned the death threat letter over to the authorities. However, this letter was submitted as evidence to the panel as exhibit P-28. Questioned at the hearing on the course taken by this letter before it ended up in the panel"s record, the applicant testified that he had put his neighbour in contact with a police officer who had arranged to get it back from the police station. According to the panel, the applicant testified that he had met this officer at the time the U.S. mission came to Algeria, in February 1997, but when questioned by the panel he was unable to give this individual"s name and address.
[17] Other than this, the panel also cites another factor to justify its decision. It holds that the death threat letter had no probative value, and "[Translation ] considers it unlikely that the claimant, having been targeted by a threat of execution in February 1997 and again been sentenced to death in April 1997 with the promise of a written verdict, would receive only a so-called letter "of warning"", 16 to 18 months after the triggering incident of February 23, 1996. The panel suggests a second reason not to assign any probative value to this letter: the Algerian authorities had dismissed the complaint because the letter did not have the seal of the addressee [sic " sender?].
[18] In its final conclusion, the panel writes:
| [Translation] For all these reasons, the panel does not believe this story and is of the opinion that the evidence submitted is insufficient to establish that the claimant, should he return to his country, would face a "reasonable chance" of persecution, to use the language of Adjei [Adjei v. M.E.I., [1989] 2 F.C. 680 (F.C.A.)]. |
Analysis
[19] The panel denied the applicant refugee status on the ground that it did not believe the content of his story. The applicant, it said, had failed to demonstrate in a credible and trustworthy way the existence of a reasonable fear of persecution related to the reasons he cited in support of his claim, that is, the GIA"s condemnation of the political opinions he embraces.
[20] The panel based its conclusion on three improbabilities or implausibilities it found in the claimant"s testimony:
| (1) the fact that his father had not mentioned to him the death sentence hanging over him while he was preparing to return; |
| (2) the fact that he was unable to remember either the name or the address of the policeman to whom he had sent his neighbour to recover the death threat letter that his father had allegedly turned over to the police; and |
| (3) the improbability surrounding the death threat letter, to which the panel assigned no probative value since this letter was simply a letter of warning received 18 months after the triggering incident of February 1997 and did not bear the seal of the GIA. |
[21] The applicant"s counsel argues that the explanation given by the applicant to justify his father"s silence about the death threat letter is plausible: his father would have thought it preferable not to mention this letter to the applicant for fear it would reinforce him in his decision to return to Algeria rather than dissuade him.
[22] The applicant"s counsel further argues that the panel is citing some secondary details in its argument that the claimant is not credible. He argues that there is no evidence on the record to support certain factors pertaining to the improbabilities cited by the panel. For example, counsel submits:
| (1) the panel erred in concluding that the applicant did not know the name of the policeman to whom he had directed his neighbour. The evidence establishes that the applicant gave the officer"s first name, Abdelkrim; |
| (2) the panel members seriously erred in claiming that this was a police officer, when the applicant had clearly explained at the hearing that he was an officer in military security. According to counsel, this detail was extremely important since it gave plausibility to the explanation given in this regard by the applicant, since military security takes precedence over the civilian police departments in Algeria; |
| (3) Furthermore, he maintains that it was unreasonable for the panel to consider improbable the applicant"s lack of knowledge of the officer"s address. The fact remains that the applicant did direct his neighbour to the airport where the officer was on duty. |
[23] The applicant"s counsel attacks the panel"s findings in regard to the content of the death threat letter. Counsel argues that it is obvious from the letter, on its face, that it is not simply a warning but indeed an enforceable death sentence, notwithstanding the word "warning" in the document"s heading. Counsel submits that the death threat letter of August 1, 1998 was the culmination of a process initiated by the terrorists well before that date and that the facts reported by the applicant are within a consistent context and thus are intrinsically credible.
[24] Counsel further argues that the panel had no evidence to find that it was the GIA that had issued the death threat letter. The documentary evidence, he says, established that there are a number of terrorist groups in Algeria and that the GIA is only one of them. The only evidence on the record concerning the practice of affixing a seal to such a letter is linked to the GIA and not to other terrorist groups in that country; but the death threat letter is simply signed "The Armed Group".
[25] Having analyzed the record and the submissions by the parties, I am of the opinion that this application for judicial review must be dismissed.
[26] The judgment in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.) establishes the guidelines for this Court"s intervention in matters of improbability and implausibility. Décary J.A. states the principle in the following words, at paragraph 4:
| [4] 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 than 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. In Giron, the court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. [Emphasis added] |
[27] The panel bases its first improbability on the fact that the applicant"s father did not mention the death threat letter to him when the applicant was preparing to return to the country. This improbability is based on evidence in the record and is not unreasonable. It is the panel"s task to assess the evidence. In Canadian Union of Public Employees, Local 301 v. Montreal (City) , [1997] 1 S.C.R. 793, Madam Justice L"Heureux-Dubé writes, at page 844:
| We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: ... Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal"s findings will a fact finding be patently unreasonable. [Emphasis added] |
[28] In regard to the second improbability, the record does in fact show that the applicant did not know either the full name of the officer nor his address, and considering the importance of the course taken by this letter, it was fully within the jurisdiction of the panel to assess the importance of this fact. I am unable to conclude that the inference was unreasonable.
[29] As to the third improbability, I do not agree that the panel erred in characterizing the letter of August 1 as a mere letter of warning. Counsel supported his allegation by reading an extract from the panel"s decision that is out of context. Viewed as a whole, the panel"s decision clearly indicates that it considered the letter to be a death sentence.
[30] Furthermore, the panel was entitled to assign no probative value to the death threat letter, as the Algerian authorities did. It is the applicant himself who filed the evidence of the Algerian authorities" rejection of this letter, whether it emanated from the GIA or from some other terrorist group.
CONCLUSION
[31] For all these reasons, this application for judicial review is dismissed.
| "François Lemieux" |
| J. |
OTTAWA, ONTARIO
MARCH 22, 2000
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: IMM-1097-99 |
| STYLE: MAHMOUD ABBACE v. MCI |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: January 7, 2000 |
REASONS FOR ORDER OF LEMIEUX J.
DATED: March 22, 2000
APPEARANCES:
Pierre Langlois FOR THE APPLICANT
Marie-Nicole Moreau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Pierre Langlois FOR THE APPLICANT
Saint-Lambert, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada