Date: 20020830
Docket: IMM-4108-01
Neutral citation: 2002 FCT 920
BETWEEN:
AMER BAKER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
[1] The Applicant, Amer Baker, is a forty-four year old male and a citizen of Iraq who claims a well-founded fear of persecution by the State because of his political opinions and his Shiite faith. On July 4, 2001, the Refugee Division (the "tribunal") decided he was not a Convention Refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c.I-2 (the "Act"), because he had not established through credible evidence a serious risk of persecution in Iraq on one of the five Convention grounds. Moreover, the tribunal determined he was excluded from being a refugee through the operation of paragraph F(a) of Article 1 of theUnited Nations Convention relating to the Status of Refugees incorporated into the definition of "Convention Refugee" in the Act.
[2] The centerpiece of the Applicant's story for inclusion is the March 1991 uprising against Saddam Hussein's regime which took place in southern Iraq where most Iraqi Shiite Muslims live and, specifically, in the cities of Najaf and Karbala.
[3] The Applicant wrote in his PIF his participation in the uprising took the form of humanitarian relief: transporting wounded to his neighbour who was a surgeon and providing medical assistance and food. This help for the wounded, he claims, was proffered to both sides: the insurgents and the authorities.
[4] The army gained the upper hand but before it entered Najaf he fled to Karbala and then to Bagdad where he was arrested in 1994 and transferred back to the Security Forces in Najaf who tortured and terrorized him. He was freed under a general amnesty law. He moved from place to place to avoid the Security Forces and succeeded in fleeing to Canada in July 1999.
[5] The focus of the tribunal's findings on exclusion related to the role it attributes to the Applicant in census-taking for the Government which identified Iraqi residents by ethnicity and religion resulting in the deportation of Kurds and Shiites by the authorities.
THE TRIBUNAL'S DECISION
[6] The tribunal determined the Applicant did not establish with credible evidence he would face a serious risk of persecution, based on one of the five Convention grounds, if he returned to Iraq. The tribunal did not believe the Applicant was in Najaf at the time of the 1991 uprising and did not believe he had been arrested in 1994.
[7] The tribunal came to these conclusions for several reasons: 1) the lack of specific dates for critical events in his PIF requiring amendments to that document, because in the words of his counsel, he could not remember the dates; 2) backtracking in the Applicant's testimony on what happened to the wounded in Najaf after the army arrived when he realized he had previously testified leaving the city at dawn before the army came in; 3) internal contradictions in his testimony about the wounded in Najaf; 4) an implausibility the Iraqi Secret Service would not question his wife as to his whereabouts because she was in a room other than the parlour for receiving guests; 5) an implausibility he would receive medical care after being tortured (resulting in a broken jaw) when documentary evidence showed army deserters would be mutilated; 6) an internal inconsistency between his PIF and his testimony as to whether he was arrested in 1994 or had voluntarily identified to the authorities, because of a new law, he could no longer live in Bagdad and was required to return to Najaf; 7) an internal inconsistency in his testimony as to the reason for his arrest in 1994: desertion from the Army or participation in the 1991 uprising; and 8) the clash between the documentary evidence and the Applicant's testimony on material dates related to the 1991 uprising: when it commenced in Najaf and Karbala and when the army seized control of those cities.
[8] For exclusion, the tribunal found there are serious reasons for considering the Applicant had been an accomplice in a crime against humanity because he had knowledge and he personally participated through his work in two ten year censuses (1977 and 1987) in the implementation of a policy for the deportation of Shiites from the south of Iraq and Kurds to other regions in that country.
[9] The tribunal came to this conclusion because it found: 1) the Applicant knew the census was a policy instrument for the denial of the Iraqi citizenship; 2) he participated in the census with the knowledge the information gathered on ethnic and religious groups would later be used for deportation purposes; 4) it is implausible the Applicant did not know the purpose of the information he collected; and 5) the Applicant did not ask for a transfer, nor did he try to resign his position.
ANALYSIS
[10] The tribunal findings which it concluded undermined his credibility are findings of fact. In accordance with paragraph 18.1(4)(d) of the Federal Court Act, the Court will not intervene unless the tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. This statutory criteria is equivalent to a standard of review requiring a patently unreasonable finding and conclusion.
[11] In Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 at page 844, L'Heureux-Dubé J. for the Supreme Court of Canada wrote at paragraph 85:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one ... Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision ...
[12] In Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, Décary J.A. states at page 4 for the Federal Court of Appeal:
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.
[13] The Federal Court of Appeal in Mostajelin v. Canada (Minister of Citizenship and Immigration) (January 15th, 1993) A-122-90, wrote:
The Board's conclusion that the appellant's evidence was not credible or trustworthy is based upon the appellant's demeanour, the conflict between the Personal Information Form and his oral testimony and a series of inconsistencies and implausibilities in his oral testimony. Such credibility findings are beyond the review of this Court.
[14] Evans J., as he then was, wrote in Cepeda-Guitierrez v. Canada (The Minister of Citizenship and Immigration), [1998] F.C.J. 1425, as follows:
It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise... In order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made "without regard to the evidence". [Emphasis mine]
[15] At the beginning of the hearing before the tribunal, there was confusion on the dates of major events. The Applicant did not include dates surrounding the uprising in his PIF. The tribunal writes at page 1 of its decision:
Considérant que des centaines de causes entendues par ce tribunal, il n'a jamais été nécessaire d'interrompre deux fois l'audience pour amender un FRP et étant donné que le revendicateur n'a fait état d'aucun problème de santé, son avocate expliquant simplement lors des échanges avec son client que ce dernier « ne se souvient pas des dates » , la présence de ce dernier sur les lieux du soulèvement était d'emblée remise en question.
[16] The tribunal member preferred to adjourn the hearing a second time over the issue of dates in order to make certain matters had been clarified. The tribunal member said at page 12 of the June 13, 2000 transcript:
... je m'excuse, moi je vais revenir à 2 h 00, moi je ne comprends pas ce qui est écrit ici. Si... si vous faites une proposition, il n'est pas d'accord avec elle, moi je ne veux pas lui faire entrer dans la gorge ce qu'il ne veut pas. Donc, je reviens à 2 h 00. Maître, encore une fois vous comprenez que la crédibilité est un point qui est en... qui est en litige ici et en toute justice, il faut... je préférerais encore attendre jusqu'à 2 h 00 pour avoir une réponse définitive à cela.
[17] The tribunal had the opportunity to see and listen to the Applicant's testimony and as such the tribunal has an advantage in its evaluation of credibility. In Muthuthevar v. Canada (Minister of Citizenship and Immigration) (February 15, 1996) IMM-2095-95, Cullen J. stated at paragraph 6:
Findings of credibility are clearly within the purview of the Board. This Court has made it clear that it will be reluctant to interfere with credibility determinations, given the Board's opportunity and ability to assess the witness, his or her demeanour, frankness, readiness to answer, coherence and consistency in oral testimony. Furthermore, the Board is entitled to make an adverse finding of credibility based on the implausibility of an applicant's story, provided the inferences drawn can reasonably be said to exist. Negative findings with respect to an individual's credibility are properly made so long as the Board gives reasons for its decision in "clear and unmistakeable terms" (Hilo v. Canada (Minister of Employment and Immigration) (1992), 15 Imm. L.R. (2d) 199 (F.C.A.)). Provided that the decisions are properly founded on evidence, do not ignore evidence, or are supported by evidence, this Court will not interfere.
[18] The tribunal observed confusion on dates and had the opportunity to see and listen to the Applicant's explanation. At the beginning of the hearing five dates were missing, four of which were related to the uprising of the Shiites in March 1991. This event is central to the Applicant's refugee claim. The tribunal determined this circumstance had a negative effect on his credibility casting doubt on whether he was present at the Intifada.
[19] The tribunal concluded his testimony concerning his assistance in treating injured persons during the uprising was flawed with inconsistencies. The tribunal noted, hearing after hearing, the fate of the injured persons had changed in his testimony. The tribunal decided it could not believe he assisted injured persons during the uprising. It did not believe he assisted injured persons during the uprising.
[20] The Applicant made a comment on the fate of injured persons following the army's bombing and capture of Najaf. Previously, the Applicant said he had already left Najaf before the army entered the city as is shown in the following transcript extract at page 72 of the June 13, 2000 transcript.
Q. Donc, Monsieur, c'est le 7 que Najaf a été attaquée par des missiles ?
R. La nuit du 7 au 8.
Q. La nuit du 7 au 8. Ça a duré longtemps ce... de bombardement ?
R. Jusqu'à l'après-midi, jusqu'à ce que l'armée est entrée.
Q. Ça a commencé de quelle heure à quelle heure, Monsieur ?
R. Bon, il était... ils ont commencé à bombarder entre 3 h 00 et 4 h 00 du matin et c'est quand il y a eu les bombardements que moi je suis sorti.
Q. 3 h 00... 3 h 00, 4 h 00 du matin du 7 au du 8, Monsieur ?
R. C'est à l'aube, à l'aube du huitième jour, entre le 7 et le 8 le soir.
Q. Merci. Et ils ont bombardé de... jusqu'à quelle heure, Monsieur ?
R . J'ai quitté évidemment, je suis sorti évidemment, mais tel que j'ai pu entendre par la suite, avant l'après-midi il y a eu fin du... des bombardements, mais ensuite ça a été suivi par l'armée, l'armée est arrivée. Moi, j'ai quitté et je savais pas les... les détails exacts.
[21] The tribunal did not believe that the Applicant went to Karbala on the morning of the March 8, 1991 as he alleged.
[22] The tribunal noted an inconsistency between his PIF and his oral testimony on the cause of his arrest. He had written he had been arrested for his participation in the Intifada. He testified he was arrested for cause of desertion (Transcript, March 14, 2001):
Q. Monsieur, pourquoi avaient-ils besoin, en 94, de savoir si vous avez participé, dans la mesure où un voisin leur a déjà dit cela?
R. Oui. Parce que moi j'avais déserté, j'étais déserteur à Bagdad.
Q. Monsieur, ils vous ont arrêté comme déserteur ou comme ayant participé à l'Intifada?
R. Comme participant à l'Intifada.
Q. Alors pourquoi vous dites parce que j'étais un déserteur?
R. Je n'ai pas dit ça.
[23] A month after he said he had left Najaf, he testified agents of the Security Services made regular inquiries of his brothers about him, but never contacted his wife. The tribunal found it implausible the Applicant's family would be so well treated as the brutality of the Security Services towards deserters is well known. The tribunal supported its conclusion with documentary evidence on the treatment reserved for families of a wanted person. The tribunal had the impression the Applicant was expressing a favourable opinion of the Iraqi Security Services.
[24] When questioned on the treatment of families of a person wanted by the authorities, he stated after 1990, such ill treatments were no longer taking place. The tribunal found the Applicant's comment inconsistent with a person fleeing persecution.
[25] The tribunal was surprised to hear his jailers would bring him to the hospital after breaking his jaw, because according to the documentary evidence, it is known the Iraqi authorities have contempt for human rights. The tribunal did not believe the Applicant was arrested.
[26] The tribunal raised a contradiction in his oral testimony. He stated the uprising started around ten or eleven o'clock on the morning of March 2, 1991 and, in another instance, he testified it was at noon. In addition, different reports stated the Intifada started in the afternoon of March 3, 1999. The tribunal gave preference for the report of the Middle East Watch as it was entitled to (Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No 1087 (C.A.F.)).The tribunal wrote at page 4 of its decision:
En conséquence, le tribunal accorde sa préférence à la preuve documentaire émanant de sources indépendants, à la fiabilité et impartialité incontestables s'agissant plus particulièrement de Middle East Watch par rapport au témoignage souvent vague, peu consistent et hésitant du revendicateur; de plus il ne croit que ce dernier était au sud de l'Irak en mars 1991 et qu'il ait été persécuté tel qu'allégué. [Emphasis mine]
[27] This Court cannot substitute its own assessment of the facts over that of the tribunal, when the tribunal had evidence to support its conclusion; Oduro v. Canada (Minister of Employment and Immigration), (June 2, 1993) A-7171-92.
[28] Overall, a review of the transcript confirms the tribunal's findings of credibility based as they were on standard assessment techniques of evidentiary contradictions, inconsistencies, implausibilities and vagueness, were grounded in the evidence. The Court cannot, in these circumstances interfere.
[29] Because the tribunal concluded that the Applicant was not a Convention refugee under paragraph 2(1) of the Act, it is unnecessary for this Court to consider the tribunal's decision relating to the exclusion.
[30] The Applicant alleged he could not answer questions at his own rhythm because the tribunal showed impatience and animus towards him, and the representative of the Minister always repeated the same questions. I find no merit in this argument. A review of the transcript reveals many times, the questions were repeated because the Applicant did not answer the question or his answer was evasive. The tribunal did show impatience at times and would interrupt his counsel who did not express fundamental concerns. In the circumstances, I do not believe an observer well informed would reasonably perceive the tribunal's conduct, in such circumstances, as amounting to bias or an unfair hearing; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at page 636.
[31] In addition, the Applicant did not support his allegations with specific examples. The only example he raised was a question in relation to his last name being similar to the former president of Iraq. The Applicant argues his negative answer created doubt. As mentioned in Arthur v. Canada (Attorney General), [2001] A.C.F. no 1091 (C.A.F.), an allegation of bias cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel.
[32] For all of these reasons, this judicial review is dismissed. No question for certification was proposed.
"François Lemieux"
JUDGE
OTTAWA, ONTARIO
August 30, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4108-01
STYLE OF CAUSE: AMER BAKER
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUÉBEC
DATE OF HEARING: MAY 28TH , 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: AUGUST 30st, 2002
APPEARANCES:
ME JOYCE YEDID FOR THE APPLICANT
ME GUY LAMB FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
ME JOYCE YEDID FOR THE APPLICANT
MONTRÉAL, QUÉBEC
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA