Federal Court Decisions

Date: 20050118

Docket: IMM-2729-04

Citation: 2005 FC 18

Ottawa, Ontario, the 18th day of January 2005

PRESENT: THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

ZIANY RAHIM

Applicant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]        When a person's inherent logic is itself lost, the person's credibility is so undermined that the story no longer has any intrinsic meaning: documentary evidence regarding the country, by itself, without any direct link to the individual, is not a means to establish that this is a person in need of protection.

NATURE OF JUDICIAL PROCEEDING

[2]        This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated March 10, 2004, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (the Act).^[1] In that decision, the Board determined that the applicant was not a "Convention refugee" within the meaning of section 96 or a "person in need of protection" within the meaning of subsection 97(1) of the Act.

FACTS

[3]        The applicant, Ziany Rahim, a citizen of Sri Lanka, alleged she had a well-founded fear of persecution based on her political opinion.

[4]        The following are the alleged facts, as described by the Board. Ms. Rahim followed in her father's footsteps when she joined the United National Party (UNP) in 1999. She participated in political meetings and handed out pamphlets for the party, which led the People's Alliance (PA) to make threats against her, including death threats. Ms. Rahim complained to the UNP and the police, but did not receive protection.

[5]        Ms. Rahim was friendly with a Canadian whom she had met, and who with her witnessed a terrorist attack. However, after the man in question returned to Canada she never heard from him again.

[6]        Since she had a visa, Ms. Rahim decided to leave her country for Canada, believing she would be safer there. She arrived in Toronto on November 10, 2000, and filed a refugee claim five months later.

IMPUGNED DECISION

[7]        The Board dismissed the refugee claim based on Ms. Rahim's lack of credibility. Essentially, the Board based its decision on two points. First, it noted an omission, contradictions and improbabilities in the essential elements of the applicant's story. Second, the Board noted that the applicant's actions were not consistent with those of a person genuinely in fear of persecution.

ISSUES

[8]        1. Was it patently unreasonable for the Board to find that the applicant lacked credibility?

            2. Could the claim for protection under section 97 be dismissed based solely on the finding that the applicant was not credible under section 96?

ANALYSIS

            1. Was it patently unreasonable for the Board to find that the applicant lacked credibility?

[9]        After her arrival in Canada, Ms. Rahim married the man she was seeing in Sri Lanka, Éric Charron. At the beginning of the hearing, therefore, the Board asked Ms. Rahim if she feared returning to her country because she had married a non-Moslem. She answered that she did, but she had not altered her Personal Information Form (PIF) to reflect that fact or asked that changes be made to her application at the beginning of the hearing. However, she could not identify any harm she would suffer if she were to return to the country married to a non-Moslem, except the fact she would be regarded with disdain . In the Board's view, the lack of any explanation in this regard undermined Ms. Rahim's credibility.

[10]      It is well settled that on questions of credibility, as in this case, the Board's error must be patently unreasonable for the Court to intervene [Aguebor v. Canada (Minister of Employment and Immigration) (F.C.A.),^[2] Pissareva v. Canada (Minister of Citizenship and Immigration)^[3] and Singh v. Canada (Minister of Citizenship and Immigration)^[4]].

[11]      The Board considered the time it took for Ms. Rahim to leave Sri Lanka. Despite the fact that she had had a visa for Canada since May 8, 2000, Ms. Rahim did not leave her country until November 10, 2000. She explained to the Board that she needed a month to get enough money to buy a ticket and leave the country. The time that it takes an applicant to leave his or her country of origin can be taken into account in determining whether the person had a subjective fear of persecution. The Court also noted that Ms. Rahim did not make her refugee claim until five months after her arrival in Canada. These points cast doubt on the Ms. Rahim's subjective fear of persecution [Huerta v. Canada (Minister of Employment and Immigration) (F.C.A.)^[5]].

[12]      The Board also noted a number of inconsistencies and contradictions in Ms. Rahim's testimony. She entered in evidence a membership card for the UNP Party, which was supposedly her first membership card, and the Board noted that Ms. Rahim already had a membership number when it was issued and that the year of validity for the card had been left blank.

[13]      Ms. Rahim also filed a letter from a member of Parliament stating that she had mentioned receiving threats. However, Ms. Rahim gave the Board three versions regarding when she had mentioned it. With respect to the UNP party letter, which described Ms. Rahim as an active member of the party, Ms. Rahim stated the contrary in her testimony. The Board also questioned Ms. Rahim about her political involvement. Inter alia, she described a member of Parliament as a minister of Parliament. The Board told her that it had never heard of such a title. Ms. Rahim replied that she was not a politician, but worked in politics. As she filed a letter from a member of Parliament, Ms. Rahim ought to have understood the meaning of "MP".

[14]      Further, Ms. Rahim alleged that her political involvement concerned the municipal elections in October 2000. However, the documentary evidence showed that it was the parliamentary elections which took place in October 2000. Ms. Rahim responded that she was confused about politics and was very busy with her work in a hotel. She also said she no longer recalled the result of the October 2000 election.

[15]      Ms. Rahim was also unable to name the two Moslem Sri Lankan political parties, because she said it was difficult to remember them. The Board accordingly did not believe Ms. Rahim was involved in politics.

[16]      Another reason which led the Board to make this determination related to Ms. Rahim's father. She said that, despite his political involvement, her father had no problems because he was a man. The Board informed Ms. Rahim that, from its specialized knowledge, several Sri Lankan men have been victims of violence and, according to the documentary evidence, the October 2000 election was marked by violence and intimidation. Ms. Rahim replied that she was not aware of her father's situation and did not know the circumstances surrounding her father at the time of the elections.

[17]      Ms. Rahim argued that the Board had asked for too many details and expected replies that would have been given by a member of the party's executive committee, not an ordinary member participating in some party activities on a part-time basis. The Court cannot accept that argument. It is natural that the Board would have tried to determine whether Ms. Rahim had in fact been involved in politics as she said, by testing some of her knowledge about the party. The questions put by the Board were quite straightforward and a member of a party participating in various activities of the party should have been in a position to answer them.

[18]      Ms. Rahim further argued that as the Board had not in its reasons addressed the psycho-medical certificate filed in evidence, this indicated that the Board had not assessed the probative value of that exhibit. With respect, the Court cannot agree with this proposition. First, unless there is some indication to the contrary, it is assumed that the Board takes into account all the evidence submitted to it. Second, the Board is not required to describe its assessment of all these points of evidence in its reasons. In this case, as the long list of inconsistencies and contradictions given by the Board indicates, Ms. Rahim's credibility was already undermined considerably and the Board was therefore not obliged to give its observations on the report. Moreover, the report, which is a medical report - not a psychological report, is based on a medical examination of Ms. Rahim by Dr. Caroline Bélanger, and gives no relevant information except to state that the physical examination of Ms. Rahim did not indicate anything abnormal. The writer of the report clearly noted, by language such as [TRANSLATION] "in the questionnaire, Ms. Rahim told me", "she said she suffered" and "she stated", that the information about Ms. Rahim's prior and present psychological condition was based strictly on what she told the physician. Ms. Rahim relied on Sawadogo v. Canada (Minister of Citizenship and Immigration)^[6] in support of her argument that the Board wrongly disregarded the medical report. In Sawadogo, the Board failed to take more than one piece of evidence into account, and the Board's reasons for doubting the applicant's credibility were not considered persuasive on judicial review. In this case, the deficiencies in Ms. Rahim's credibility were numerous and fully explained. Further, as noted earlier, the report gives no additional information about the applicant's situation.

2. Could the claim for protection under section 97 be dismissed based solely on the finding that the applicant was not credible under section 96?

[19]      According to Ms. Rahim, tthe Board was not automatically entitled to dismiss the protection claim under section 97 based on the fact that it had dismissed the claim for lack of credibility under section 96. Those sections provide the following:

96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,		96. A qualité de réfugié au sens de la Convention -- le réfugié -- la personne 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 :
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or		a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.		b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.

97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :           (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or		a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if		b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,		(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,		(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and		(iii) la menace ou le risque ne résulte pas de sanctions légitimes -- sauf celles infligées au mépris des normes internationales -- et inhérents à celles-ci ou occasionnés par elles,
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.		(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.		(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d'une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.

[20]      The fact that the Board determined that the applicant lacked credibility was in itself sufficient as a basis for finding that there were no substantial grounds to believe Ms. Rahim was in danger of personally suffering torture or personally facing a risk to her life or cruel and unusual treatment or punishment under subsection 97(1) of the Act [Gonulcan v. Canada (Minister of Citizenship and Immigration)^[7] and Atwal v. Minister of Citizenship and Immigration, IMM-4518-02, September 2, 2003, per Martineau J.]. Documentary evidence on the country in question cannot, without something more linking it directly to Ms. Rahim's situation, establish that she is a "person in need of protection" pursuant to section 97.

[21]      The Court concludes that the Board made no error requiring intervention.

CONCLUSION

[22]      For these reasons, the Court answers the first question in the negative and the second question in the affirmative. Accordingly, the Court will dismiss the application for judicial review.

ORDER

THE COURT ORDERS that this application for judicial review be dismissed. No question is certified.

Certified true translation

K.A. Harvey

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                   IMM-2729-04

STYLE OF CAUSE:                                                   ZIANY RAHIM

v.

MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                             MONTRÉAL, QUEBEC

DATE OF HEARING:                                               JANUARY 10, 2005

REASONS FOR ORDERAND ORDER BY: THE HONOURABLE MR. JUSTICE SHORE

DATE OF ORDER AND ORDER:                          JANUARY 18, 2005

APPEARANCES:

Jean-François Fiset                                                        FOR THE APPLICANT

Steve Bell                                                                      FOR THE RESPONDENT

SOLICITORS OF RECORD:

Jean-François Fiset                                                        FOR THE APPLICANT

Montréal, Quebec

JOHN H. SIMS                                                            FOR THE RESPONDENT

Deputy Attorney General of Canada