| Date: 20010503 Docket: IMM-3565-00 Neutral Citation: 2001 FCT 430 BETWEEN: MARY ANA LOTFY HABIB BOCTAR Applicant - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent McKEOWN J. [1] The applicant seeks judicial review of a June 6, 2000 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") which determined that the applicant was not a convention refugee. [2] The issues are whether the Board erred by: (1) ignoring the evidence of the witness who appeared for the applicant; (2) making an unreasonable determination regarding "well-founded fear"; and (3) making unreasonable credibility findings; [3] The applicant's counsel submits that the Board erred in failing to consider the testimony of a witness who corroborated the applicant's testimony in terms of her active role in the Coptic Church, which thereby supports her claim to being a target of persecution based on religion. In Cepeda-Gutierrez v. M.C.I., [1998] F.C.J. No. 1425 (T.D.) (Q.L.), Evans J. (as he then was) clearly stated that the Board had an obligation to consider documentary evidence which was directly relevant to the claim. He also stated that the greater the relevance of such evidence, the greater the need for the Board to explain its reasons for not attributing weight to it. He noted at paragraph 17: However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. [4] In this case the witness' testimony was not directly corroborative to that of the applicant since he could only testify about her involvement in the church while she was in Egypt, not the Sudan. The Board does not mention her religious activities in Egypt in its reasons at all and relies strictly on evidence from Sudan. Evidence relating to the applicant's activities in Egypt is not directly relevant to her claim. Since the Board did not make any findings with respect to her activities in Egypt, the Board did not err by failing to consider the witness' testimony. Furthermore, the applicant's own testimony does not establish that she is actively involved in the Coptic church. [5] The Board then went on to determine whether the applicant had a well-founded fear of persecution in Sudan because she was a single Christian woman without a nuclear family. The applicant testified that she was involved in the Coptic church in the Sudan. The Board held that Coptics involved in philanthropy do face more than a mere possibility of persecution. However, there was no evidence that the applicant was involved in philanthropy. [6] The Board stated at page 5: There is also no question that all women, regardless of religious affiliation, must respect the hijab and are subject to the Sharia laws. Having considered these two fact-based situations, the panel must characterize the treatment of Christians and Christian women in Sudan as harassment and discrimination. However, we do not find any maltreatment alleged to be persecutory in the case at hand, whether considered singularly or cumulatively. [7] The applicant's counsel submits that the Board should have explained further why the mistreatment of the applicant based on her gender merely constituted harassment and discrimination, but not persecution. However, there was no credible evidence from the applicant to show that she had been persecuted and she did not fall within the group of Christian women who were being persecuted according to the documentary evidence. [8] The applicant's counsel also submits that the Board made unreasonable credibility findings. The Board cited examples of inconsistencies, contradictions and exaggerations which led to its finding that there was insufficient credible or trustworthy evidence provided by the applicant upon which the Board could find that the applicant had a well-founded fear of persecution. Deference must be accorded to the Board in terms of its credibility and plausibility findings as per Aguebor v. MEI (1993), 160 N.R. 315 (F.C.A.). In my view, the credibility findings were open to the Board. While I might have made different findings, the Board is in the best position to make these findings and its conclusion is not so unreasonable as to warrant judicial intervention. [9] The application for judicial review is dismissed. "W. P. McKeown" JUDGE Ottawa, Ontario May 3, 2001 |