Date: 19980612
Docket: IMM-2605-97
BETWEEN:
Tatal (Idress) METWLY,
Muna AMHDI,
Smarwa (Marwa) TALAL,
Saga (Safa) TALAL,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MCKEOWN J.
[1] The applicant husband, wife and their two children, citizens of Sudan, seek judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated May 30, 1997, that the applicants are not Convention refugees.
[2] The issue is whether the Board's finding on credibility can be upheld in light of numerous errors made by the Board in reaching this finding. The Board dealt with the male applicant separately from the female applicant, and I shall accordingly deal with the male applicant first.
[3] The Board states at page 2 of its Reasons: "the Board identified credibility as a major issue in these claims". The Board proceeds to make some glaring errors. At page 4, the Board states:
| In oral evidence, which is not mentioned in his PIF, he claimed that he was imprisoned in April 1990 and held until August 1992, and "was accused while in prison that I was trying to overthrow the regime while still in prison on a second- a second time." He was released following an appeal by international human rights organizations like Amnesty International to exert pressure to release him. |
| Contradicting this oral testimony is page 4, question 23 of his PIF, where he stated from July 6th 1990 to August 12th 1990, he was out of the country on his honeymoon. Further contradicting the testimony of his imprisonment is his testimony on another hearing date where he said that he was sent to Libya and Egypt for specialized flight training from September 1990 until January 1991. |
[4] The Board clearly relies on the fact that the applicant was imprisoned from April 1990 until August 1992. The evidence shows that it was witness, Mr. Abdellatief, Vol. 5, p. 890, who was imprisoned during that period of time. Clearly, the fact that the applicant was out of the country on his honeymoon and that he was on specialized flight training is not in contradiction.
[5] The Board then continues on to say:
| However, his own testimony revealed that the year he allegedly tried to resign, he was promoted to Captain Pilot. Between the years 1992 and 1994, he was promoted to Lieutenant Colonel in the Sudanese Military and also as Commander of the Puma Squadron of the Air Force. |
[6] Again, the evidence is clear that he was never promoted to Lieutenant Colonel in the Sudanese Military or Commander of the Puma Squadron in the Air Force. Again, it was the witness, Mr. Abdellatief, whose testimony begins at page 885, who was a Lieutenant Colonel in the Sudanese Military and Commander of the Puma Squadron of the Air Force.
[7] Neither the applicant nor his two witnesses identified the applicant as a Lieutenant Colonel or Commander of the Puma Squadron. In many instances, the applicant and the two witnesses identify him as a pilot or captain pilot.
[8] These errors are very important because they then colour the Board's view of the credibility of the applicant. The Board made other peripheral findings such as stating that the applicant made four requests to resign from the military instead of three. The Board also identified the applicant as having given precise details on the arming of the MI24. I have some reservations as to whether answers to a couple of questions, in fairly broad terms, constitute precise details. I do not rely on either of these errors to find that the Board's findings on credibility are in error. The Board's findings with respect to helicopters in Sudan may also be problematic, but a differently constituted Board can review the evidence and decide the facts as it sees them. The Board made no findings of error in respect to the demeanour of the applicant. I am unable to determine if the Board would have found the male applicant not credible if the earlier alleged contradictions had not been found by the Board.
[9] Furthermore, the Board also found that the oral testimony of Mr.Abdellatief and Mr. Abdalla was not credible. The Board quotes certain testimony from Mr. Abdellatief at page 7 and the beginning of page 8. Again, the problem is that the evidence was given by Mr. Abdalla and not Mr. Abdellatief. There is no similar evidence given by Mr. Abdellatief.
[10] The respondent submitted that the totality of the evidence supports the finding of the Board. I am unable to agree with this submission since, as stated earlier, many of the findings are based on the credibility of the male applicant and the two witnesses, and the Board clearly made erroneous findings of fact with respect to their credibility which are perverse and capricious.
[11] The Board also made a finding with respect to whether the applicant was a member of the Legitimate Command. The Board said at page 5 of its Reasons:
| At the second last hearing he alleged that he became a member of the Legitimate Command, an organization that was opposed to the government. While this was not mentioned in his PIF nor in the first three hearings where he gave evidence, the principal claimant tried to explain the reason for this absence of crucial information was because his friend Adil submitted a small book. [This explanation did not make sense to the Board.]. The claimant said he took a great risk to his life in joining the Legitimate Command where his function was to survey his colleagues on their political opinion and to recruit them. When asked by the RCO why he would put his and his family's life in danger like this, he replied, "I felt it was a good cause to have offered my life at a price." However since coming to Canada, he has not maintained his membership with the Command. While he stated that he has written to the Command and received many letters from them, none could be produced at the hearings or afterwards. |
[12] The Board also stated at page 10 of its Reasons:
| The witness Fathi Ahmed Ali submitted a letter which indicated that the principal claimant was a member of the Legitimate Command since 1990. He was not present to provide oral evidence confirming such matters as his relationship with the principal claimant. The panel assigned little weight to his letter. |
[13] However, the Board had stated at Volume 8 that it accepted two things, one of which was that the claimant was a member of the Legitimate Command. I do not see how a finding such as was made at pages 5 and 10 can fit in with the acceptance by the Board of this position. It just cannot affect his credibility when the Board makes such a statement.
[14] The claim of the male applicant is sent back to a differently constituted Board to be decided in a manner not inconsistent with these Reasons.
[15] The Board also considered credibility to be a factor with respect to the female applicant, but there are no similar errors with respect to the female applicant. The Board did make one error, which was not central to its findings, at page 17 of the Reasons, when it stated:
| At that time, her father, General Hussein El Khadero and one of his former students, a high ranking military officer who is still presently employed by the regime, assisted their departure from the country. |
General Hussein El Khadero is not her father. In fact, he was executed in 1990 and was the uncle of the male applicant. The name is mistakenly included as her father's name. However, her father was a Brigadier in the military, and the evidence was that her father and one of his former students, a high ranking military officer who is still presently employed by the regime, assisted their departure from the country. This is not a reversible error.
[16] In my view, no other errors appear which go to the question of whether the Board's finding was patently unreasonable. Accordingly, the application for judicial review with respect to the female claimant and the two children is dismissed.
[17] The applicant submitted the following question:
| Is it proper for the Federal Court Trial Division to provide different decisions to applicants on a Judicial Review, when there was a single decision rendered by the Immigration and Refugee Board, arising out of a joint hearing, for multiple claimants. |
In my view, the law is well settled that a reviewing court is always at liberty to vary in part a tribunal decision. Accordingly, no question is certified.
William P. McKeown
JUDGE
O T T A W A, Ontario
June 12, 1998.