Federal Court Decisions

Date: 20010723

Docket: IMM-4079-00

Neutral citation: 2001 FCT 821

BETWEEN:

FATAH BESSADI

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

                                                        REASONS FOR ORDER

Heneghan, J.

INTRODUCTION

[1]                 Mr. Fatah Bessadi (the "Applicant") seeks judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Board (the "Board") dated July 14, 2000. In its decision the Board determined the Applicant not to be a Convention refugee.

FACTS

[1]         The Applicant is a citizen of Algeria. He sought Convention refugee status in Canada on the basis of a well-founded fear of persecution on the basis of race. He is a Berber who was conscripted for service in the military. As a result he claims to be targeted for persecution by the fundamentalist terrorist group, the Armed Islamic Group (the "GIA").

[2]                The Applicant began his military service in 1994. He was severely injured in April 1995 and was hospitalized. His recovery took six months. He claims to have suffered discrimination during his hospitalization because he was a Berber conscript.

[3]                The Applicant was released from military service in 1996 and returned home. He feared personal harm because, as a result of telephone calls made to his parents when he was in military service, his membership in the military was known. He had reason to believe that members of the GIA had made telephone calls to his parents and were aware that he had been a conscript in the government forces.

[4]                The Applicant went to Algiers where he stayed for two years. He did not work. He passed much of his time scuba-diving. With no reason to expect an improved relationship in Algiers between the government and the GIA, the Applicant decided to leave the country. He arrived in Canada on April 5, 1999 and claimed Convention refugee status on that day.

[5]                The Board considered whether the Applicant had established that he had a well-founded fear of persecution. Issues identified by the Board were ethnic group / clan / tribe, nexus, credibility, failure to claim elsewhere, objective basis, and change of circumstances.^[1]    The Board identified the "determinative issue" as whether the Applicant's fear of persecution or arrest of his race or Berber ethnicity was well-founded.

[6]                The Board determined that the claim was not well-founded since the Applicant failed to adduce credible evidence as to both subjective and objective bases for his claim.

ISSUES

[7]         The Applicant raises several issues in this application for judicial review, as follows:

(1)                that the Board erred in relying upon the Port of Entry notes when the notes were not presented as sworn evidence and were made in circumstances which are unknown to him;

(2)                that the Board ignored the Applicant's evidence about the manner he spent his time in Algiers;

(3)                that the Board further ignored evidence, specifically the documentary evidence before it, when it stated that there is "no pattern of action by the Algerian authorities against Algerians simply because they are of Berber origin";

(4)                that the Board further ignored the documentary evidence when it concluded that there is no credible evidence that Algeria young men, particularly those of Berber origin who have been conscripted into the army, are targets of Islamic terrorists groups;

(5)                that the Board conducted a superficial analysis of the evidence concerning a change in country conditions in Algeria;

(6)                lack of adequate interpretation at the hearing.

Applicant's Submissions

[7]                The Applicant argues that reliance by the Board on the Port of Entry notes, in the absence of sworn evidence from the maker of those notes, constitutes a breach of the duty of fairness. Specifically, he submits that he could not have reasonably anticipated that the Board would look at these notes and rely on them to support its finding that his claim lacked a subjective basis for his fear of persecution.

[8]                The Applicant argues that the Board did not grasp the heart of his claim, that is as a young Berber male who was conscripted into the government armed forces thereby being exposed to risk of persecution by fundamentalist Islamic groups. The Applicant says that the Board focused upon the government, not the GIA, as the agents of persecution and that this mis-direction infers that the Board either misunderstood or ignored an abundance of documentary evidence.

[9]                Third, the Applicant claims that the interpretation of his evidence before the Board was inadequate.

Respondent's Submissions

[10]            The Respondent takes the position that the reasons of the Board are clear and demonstrate a full understanding of the issue, that is the Applicant's fear of persecution at the hands of the GIA. Furthermore, the Respondent says that the Board verified the evidence and reached a reasonable conclusion, based on the evidence, that the Applicant had failed to establish that he held a well-founded fear of persecution or a Convention refugee ground.

ANALYSIS

[11]            Notwithstanding the identification of several issues by the Applicant in his application for judicial review, there is only one issue here: did the Board commit a reviewable error in its determination of the Applicant's claim for Convention refugee status? In my opinion, it did not.

[12]            The Immigration Act, R.S.C. 1985, c. I-2, amended (the "Act"), defines "Convention refugee" in section 2(1) as follows:

[13]            A claimant for Convention refugee status must establish that he or she holds both a subjective and objective fear of persecution; see Ward v. Canada (Minister of Citizenship and Immigration) (1993), 103 D.L.R. (4^th) 1 (S.C.C.). The burden of adducing such evidence lies upon a claimant; see section 8 of the Act.

[14]            The Board is authorized to weigh the evidence presented to it and its conclusions will not be disturbed when they are reasonably supported by the evidence; see Owusu v. Canada (Minister of Employment and Immigration) (1993), 64 F.T.R. 13 (F.C.T.D.). The failure of a Board to specially identify the evidence which was introduced does not constitute a reviewable error of law; see Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (C.A.).

[15]            Reference by the Board to the Port of Entry notes is not a reviewable error. Those notes were part of the documentary evidence provided to the Applicant in advance of his hearing. The weight to be given to those notes is a matter within the jurisdiction of the Board; see Huang v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 178.

[16]            No issue was raised at the hearing about the adequacy of interpretation. There is no basis to find that the Applicant was prejudiced by the interpretation provided.

[17]            In conclusion, the conclusion reached by the Board was reasonably open to it on the basis of the evidence put before it. In my opinion, the Applicant received a fair hearing before the Board and there is no basis for intervention by the Court.

[18]            At the request of Counsel for the Applicant, any question for possible certification pursuant to section 83 of the Act shall be submitted within 48 hours after receipt by him of these Reasons.

(Sgd.) "Elizabeth Heneghan"

                                                                    Judge

Vancouver, British Columbia

July 23, 2001

Endnote