Date: 19991026
Docket: IMM-6774-98
BETWEEN:
ABDELATIF BENALI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division, dated December 9, 1998, which determined that the applicant is not a Convention refugee.
FACTS
[2] The applicant is a citizen of Algeria who worked as a civil servant with the taxation branch from November 1987 until 1993.
[3] In 1993, he left Algeria for France where he stayed for three years to obtain a diploma in biomedical instrumentation. According to his testimony, he was recalled to his former position at the taxation branch as of August 5, 1996.
[4] Several days later, namely on August 19, 1996, when he returned to his residence, he found a threatening letter which criticized him for returning to the taxation branch. The next day, he received several anonymous threatening telephone calls. That same day, the applicant claims that he witnessed the assassination of a friend in his neighbourhood.
[5] He then decided to leave the country and return to France, where a lawyer suggested that he go to Canada.
[6] However, before he left France for Canada, the applicant returned to Algeria for 4 or 5 days to see his family. He then left Algeria permanently and travelled to France and the United States, where he stayed for more than one and a half years. He did not claim refugee status in either France or the United States, but waited until he arrived in Canada.
[7] The applicant claimed refugee status by reason of membership in a social group, namely as an employee of the Algerian government.
DECISION OF THE REFUGEE DIVISION
[8] The Refugee Division determined that the applicant did not establish that he had a well-founded fear of persecution. It found that his testimony was full of serious contradictions with respect to major elements.
[9] First, the Refugee Division found it strange that the threatening letter the applicant allegedly received was written in French, while according to the panel"s specialized knowledge, the Islamists use literary Arabic in all of their communications, both oral and written. The Division indicated that when challenged on this fact, the applicant had no explanation.
[10] Moreover, the Division also considered that the applicant failed to establish that he actually returned to his former position and that it was strange that the applicant applied to return to his former position although the situation had seriously deteriorated in Algeria between 1993 and 1996. The Refugee Division considered that his application to return to his former position was not plausible under the circumstances. It noted that the applicant returned to Algeria in September after leaving in August, and then left again for the United States where he lived for one and a half years, yet again without claiming refugee status.
[11] The Refugee Division also stated that the applicant had initially mentioned that he was immobilized for ten months because of an infected wart on his foot. When pressed, the applicant admitted that he was only immobilized for one week and that he had worked illegally for the rest of the period.
[12] The Division determined that the applicant was not a Convention refugee.
SUBMISSIONS OF THE APPLICANT
[13] The applicant argued that the Refugee Division erred in not notifying the applicant that it was taking notice of its specialized knowledge with respect to the fact that the threatening letters should have been written in Arabic rather than in French. The applicant claimed that the lack of formal notice advising the applicant of the panel"s specialized knowledge constitutes an error which is reviewable by the Court. Furthermore, the applicant submitted that contrary to what is stated in the decision, the applicant was never challenged on the issue of language and that this constitutes an error.
[14] The applicant also claimed that the lack of corroboration about his return to his position does not mean that the Refugee Division may reject, supposedly on the balance of evidence, the other parts of the applicant"s testimony which do not have to be corroborated.
[15] With respect to his return to Algeria, the applicant drew the Court"s attention to the fact that his return to Algeria for a few days was mentioned in his PIF (Personal Information Form) in response to question 31 with respect to the itinerary for his trip, rather than in response to question 37.
[16] Furthermore, the applicant maintained that although his behaviour with respect to his subjective fear may be characterized as foolhardy, reckless, irresponsible or stupid, the delay in claiming refugee status should nevertheless not affect the outcome of the claim of an Algerian civil servant, as the danger for a civil servant is always present, whether or not the claimant is afraid.
SUBMISSIONS OF THE RESPONDENT
[17] The respondent submitted that it can be inferred from the transcript that the applicant was in fact challenged with respect to the panel"s specialized knowledge and that in any case, the applicant did not adduce any evidence which contradicted the information based on the panel"s specialized knowledge and that this was only one factor among many which weakened the applicant"s credibility.
[18] The respondent maintained that the evidence did not indicate that the applicant had returned to his position as the applicant did not present any tangible evidence or document indicating that he did in fact return to the position he held prior to 1993.
[19] With respect to his return to Algeria for 4 or 5 days before he left for the United States, the applicant simply failed to mention this in his description of the events which led to his departure for Canada.
[20] Furthermore, the respondent indicated that it was not the fact that the applicant did not mention this stay in Algeria which led the Refugee Division to doubt the veracity of the applicant"s subjective fear, rather it was the fact that returned to Algeria after he had left claiming that his safety was in jeopardy. The fact that he voluntarily returned to the country from which his is claiming refugee status and the fact that he did not file a claim as soon as possible, either in France or the United States, are factors the Refugee Division may take into consideration when assessing the credibility of a subjective fear.
ANALYSIS
[21] In the instant case, the Refugee Division took notice of its specialized knowledge. In so doing, under subsections 68(4) and 68(5) of the Immigration Act, it was required to afford the applicant the opportunity to make representations. It appears that the Refugee Division was not very specific about the notice to be given. However, despite this vagueness, the record clearly indicates that this was not a determining factor and that several other points were found to be improbable or implausible under the circumstances.
[22] Moreover, the Refugee Division found that the applicant"s return to his position at the taxation branch was improbable because at that time, Algerian civil servants were targeted by terrorists. This is a finding of fact which is under the Refugee Division"s jurisdiction. This conclusion does not appear to be erroneous in light of the evidence and I cannot see any reason why this Court should intervene under the circumstances.
[23] With respect to the applicant"s behaviour, it was not unreasonable for the Refugee Division to consider that the applicant"s conduct was incompatible with a reasonable fear of persecution in his country of origin.
[24] Mr. Justice Décary stated the standard of judicial review with respect to plausibility in Aguebor v. Canada (Minister of Employment and Immigration), [1993] A.C.F. No. 732:
| 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. |
[25] The Refugee Division also took a negative view of the delay in making a claim for refugee status and the fact that the applicant did not seek refugee status during his stays in France and later in the United States, where he remained for one and a half years.
[26] In Huerta v. M.E.I. (1994), 157 N.R. 225, the Federal Court of Appeal noted at p. 227:
| The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant. . . . |
| [TRANSLATION] The Board"s findings that the applicants" failure to seek the protection of France and that their decision to return to Iran were inconsistent with a reasonable fear of persecution were reasonable and were based on the evidence. |
[27] Based on the evidence adduced before it, it was not unreasonable for the Refugee Division to decide as it did.
[28] For all of these reasons, the application for judicial review is dismissed.
[29] Counsel for the applicant submitted the following question:
| Does the proof of an objective fear make all subjective considerations meaningless at law? |
[30] Counsel for the respondent objected to the certification of this question as it was not a deciding factor with respect to the finding of this Court.
[31] I am of the same view as counsel for the defendant, and I believe that this question was not a deciding factor in the decision in this case and that it was essentially the Refugee Division"s assessment of the evidence which led it to conclude that the applicant lacked credibility.
[32] Accordingly, no question will be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
October 26, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-6774-98
| STYLE OF CAUSE: ABDELATIF BENALI v. MCI |
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 14, 1999
REASONS FOR ORDER OF BLAIS J.
DATED October 26, 1999
APPEARANCES:
Denis Buron FOR THE APPLICANT
Marie-Claude Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Denis Buron
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada