Date: 20040809
Docket: IMM-5279-03
OTTAWA, Ontario, this 9th day of August, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
BIBI WAJEELA HAFEEZ
ABDUL AZEEMUDEEN HAMID
ABDUL MOEEMODEEN HAMID
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated June 9, 2003, which determined that the applicants are not Convention refugees or persons in need of protection, for lack of credible evidence.
FACTS
[2] The principal applicant (the "applicant") is a 38 year old citizen of Guyana. Relying on her claim are her two sons, Abdul Azeemudeen Hamid and Abdul Moeemodeen Hamid. The applicant bases her claim on her political opinion and race. She alleges a well-founded fear of persecution from Afro-Guyanese supporters of the African People's National Congress ("PNC"), because she is Indo-Guyanese and supports the People's Progressive Party ("PPP"). She operated a small transportation
business in Guyana.
[3] She claims to have been the target of physical attacks and vandalism perpetrated by Afro-Guyanese PNC supporters, because she volunteered her transportation vehicles to assist the campaign activities of the PPP. She alleges the following specific events, all of which are attributed to PNC supporters:
(1) on April 10, 2001, her truck, which carried PPP banners and campaign material was burned and her house was stoned;
(2) in June 2001, one of her passenger cabs was damaged at the local bus terminal; she was threatened at gunpoint to stop supporting the PPP;
(3) on June 6, 2001, her older son was caught up in a protest, while on his way to school, and he was beaten;
(4) in July 2001, on her return from a visit to Canada, her house was broken into and she was sexually assaulted; her house was searched for PPP pamphlets and information.
[4] She also alleges that the Guyanese police have been non-responsive to her complaints and cannot protect her in Guyana. She arrived in Canada on August 21, 2001 and made a refugee claim on August 21, 2001.
[5] After hearing her claim, the Board found that the applicant was not a credible witness, that she had failed to present supporting evidence to establish her claim, and that her pattern of behaviour was inconsistent with a fear of persecution in Guyana. At page 3 of its reasons, the Board states:
[...]
Caselaw shows that a panel may reject a testimony which is uncontradicted if that evidence does not accord with the probabilities affecting the case as a whole. ...
[...]
I find that the above applies to this case. Here the lack of documentation, which could have reasonably been obtained, combined with the six trips after, to Toronto in 1998/1999/2000, January 2001/May 2001 and July 2001 created credibility concerns.
The Board continues at page 4:
The claimant submitted a police report by a medical practitioner, which showed that her son was injured... I find that the report indicates that the claimant knew the onus she had to fulfil and that documents in support of allegations are readily available, if a claim is built on the truth. However, nothing else was forthcoming. The claimant was given sufficient opportunity to comment why, for example, she did not obtain a doctor's report in regards to the sexual assault, as it was her testimony that she was under medical care after that incident. There is no documentary evidence that she ever supported the PPP, either in the form of letters of support from the politician she allegedly supported, or the party, or a membership card. There are no police reports in regards to any assaults on her.
[6] The Board drew a negative inference from the applicant's multiple trips between Toronto and Guyana, and the fact that she did not make a refugee claim at the first available opportunity. At page 5, the Board states:
I find that the many trips to Toronto are an indication that this claim is not built on the truth. The claimant had already travelled once to Toronto in 2001 before the alleged event happened in April 2001, within a few days upon her return to Guyana. She then visited Toronto again from May to June and returned to Guyana. No explanations were given why she would return to Guyanas [sic] after her experiences in April. In her short sojourn in June she allegedly suffered many incidences of persecution. In July 2001, she took the children to Toronto and she returned to Guyana...On the day of her return to Guyana the final incident happened and she returned to Canada three weeks later. She claimed for refugee status a few days afterwards. I find that the sheer coincidence of the timing of events lie outside the balance of probabilities.
ANALYSIS
[7] The determinative issue in this application is whether the Board rejected the applicant's credibility in a patently unreasonable manner. The applicant submits that the Board failed to justify its credibility findings with specific and clear references to the documentary evidence and other evidence before it. The applicant submits that the Board either misconstrued or ignored the material evidence. The applicant submits that there are no significant inconsistencies in her testimony to warrant a negative credibility finding.
[8] The respondent submits that the objective documentary evidence is not probative in this case, in light of the Board's credibility concerns. The respondent argues that the Board did consider the country conditions in Guyana but determined that there was no personal nexus between the conditions described and the applicant. The respondent submits that the applicant failed to satisfy the burden of adducing some credible evidence to support her claim. The respondent submits that the Board can find an applicant's evidence lacking where she fails to submit obtainable supporting evidence.
[9] It is well-established that the standard of review applicable to the Board's findings of fact and credibility determinations is patent unreasonableness. This Court will not substitute the Board's decision with its own, except when the Board's decision is patently unreasonable. See Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), and De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.).
[10] Having reviewed the certified record, including the transcript of the hearing, and the Board's reasons, I am unable to agree that the Board either misconstrued or ignored the material evidence in this case. The Board's reasons make it clear that this claim was rejected due to concerns regarding the applicant's credibility. The applicant produced almost no supporting documents to corroborate her allegations, even though she displayed an awareness of the importance of such documents, because she made the effort to produce a medical certificate with respect to the incident involving her son.
[11] The Board had reasonable grounds to doubt the credibility of the applicant given that she continued to make trips between Guyana and Toronto even after the incidents of persecution in Guyana allegedly began, and she did not make a refugee claim at the first available opportunity in Toronto.
[12] It was reasonably open to the Board to conclude that the applicant's six trips to Toronto prior to the alleged rape in August 2001 undermine the credibility of the applicant's claim that she was in fact raped, and that this rape was related to her political activities. The applicant wanted to come to Toronto for reasons unrelated to her refugee claim prior to her alleged rape.
[13] It was also reasonably open to the Board to conclude that the applicant would have produced a police report and a doctor's report to corroborate the rape, and a police report and insurance report to corroborate the April 2001 bus burning incident if these incidents were true. Accordingly, I find that the applicant has not established that the credibility findings were patently unreasonable.
PROPOSED CERTIFIED QUESTION
[14] Counsel for the applicant proposed a question for certification, namely whether the Board should adjourn a hearing to provide an applicant with an opportunity to obtain necessary documents when the claimant has provided some evidence of reasonable effort to obtain the documents and needs more time.
[15] The respondent objects to this question because its answer turns on the facts in each case.
[16] I am satisfied that the Board is obliged to grant an adjournment if the applicant explains that he or she has tried to obtain corroborating documents, and needs more time. In the case a bar, the applicant had ample time to produce the police reports and medical report, knew she needed these reports, and most importantly, did not request an adjournment or opportunity to produce the reports after the hearing. Accordingly, the proposed question does not reflect a "serious question of general importance" not already settled, and would not, in any event, determine this case because the applicant did not request an adjournment or more time to produce the documents. For these reasons, no question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen"
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5279-03
STYLE OF CAUSE: BIBI WAJEEL HAFEEZ ET AL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 5, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES BY: Mr. Donald Greenbaum
For the Applicant
Ms. Lori Hendriks
For the Respondent
SOLICITORS OF RECORD:
Donald Greenbaum
Toronto, ON
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20040809
Docket: IMM-5279-03
BETWEEN:
BIBI WAJEEL HAFEEZ ET AL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER