Date: 20011017
Docket: IMM-4593-00
Neutral citation: 2001 FCT 1126
BETWEEN:
TARIG DAFALLA
(a.k.a. Tarig Dafalla M. Dafalla)
RIHAB FADLALLA
(a.k.a. Rihab Mohamed I. Fadalla)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Tarig Dafalla and his spouse Rihab Fadlalla (the "applicants"), citizens of Sudan, challenge in this judicial review application, an August 4, 2000 decision made by the Refugee Division of the Immigration and Refugee Board (the "tribunal") refusing them refugee status based on their fear of persecution on grounds of political opinion which Tarig Dafalla alleges he experienced in Sudan.
THE TRIBUNAL'S DECISION
[2] The tribunal recited that Mr. Dafalla testified he was a member of the Democratic Unionist Party ("DUP") in the 1980s and continued activities on behalf of that party after the 1989 coup and the banning of all opposition parties. The tribunal said he testified, before going to Saudi Arabia in 1994, he was arrested three times, detained several months each time and brutally treated and as a result, developed kidney problems.
[3] Mr. Dafalla said he journeyed illegally to Saudi Arabia in 1994 where he received medical attention. In 1994/1995, he returned to Sudan for one month in order to have papers validated by the Saudi Embassy in Khartoum. He testified he stayed in hiding in his friend's house, a police officer named Ali Shareef, also a DUP member.
[4] In June 1998, Mr. Dafalla said he travelled to Holland for a course and while he was there he learned the Government of Sudan had declared an amnesty. Thinking it was safe to return and anxious to visit his family who had encountered flooding during the rainy season, the applicant said he returned to Sudan.
[5] The tribunal then recites Mr. Dafalla's testimony that when he arrived in Sudan on his return, he was arrested at the airport and detained but, with the help of his friend Ali Shareef, he got out of detention and fled Sudan once more. He returned to Saudi Arabia.
[6] According to Mr. Dafalla, he and his wife, who he had recently married, left Saudi Arabia when his work visa was about to expire and he had no hope of getting it renewed. They obtained visas to the United States where they remained for approximately six weeks before coming to Canada to make a refugee claim on November 2, 1999. On March 30, 2000, their daughter was born in Canada.
[7] The tribunal decided non-recognition of refugee status on the basis of credibility. It concluded, on the balance of probabilities, his return to Sudan in July 1998 did not happen and he is not sought by the Sudanese authorities either for DUP activities or for military conscription. It made this finding for the following reasons.
[8] First, it did not believe he returned to the Sudan because the government announced an amnesty. The tribunal said the documentary evidence did not make any reference to an amnesty but did refer to an attempted coup in late June 1998 (June 29, and 30, 1998) which the government suppressed and followed up with arrests of DUP members. The tribunal said:
It is not plausible that the principal claimant could possibly believe that the government would issue an amnesty at this time.
[9] Second, the tribunal concluded that even if Mr. Dafalla meant to say he returned because of a cease-fire and not because of the amnesty, such confusion would not help him because:
... in testimony he stated that he heard about it around June 25th, investigated it to make sure it was genuine, and then left Holland for Sudan in early July. This is not consistent with the documents which refer to the cease-fire only being agreed to in July.
[10] Third, the tribunal noted from his testimony that he was motivated to return to help his family who had experienced difficulties during the rainy season. The tribunal said it had two reservations about this in the following terms at pages 2 and 3:
First of all, considering what had allegedly happened to him in the past, it is not plausible that he would return even assuming that in the wake of the May peace talks, a cease-fire was expected or being speculated about in June. There have been many cease-fires in the war in Sudan and if the principal claimant was a government opponent and fearful of what they might do to him, it is not plausible that he would return not knowing how successful this cease-fire would be. Secondly, in light of the aborted coup attempt in late June and the arrests of opposition party members, the idea of his returning to Sudan at that time becomes even more implausible irrespective of any family problems. [emphasis mine]
[11] Fourth, the tribunal did not believe his fear of forcible conscription referring, as it did, to documentary evidence from the British Home Office stating national service was compulsory for all males between ages 18 and 33 and that young men must enter the military in order to receive a certificate on leaving secondary school allowing them to enter university.
[12] The tribunal said the principal claimant would have been 43 in 1998 (according to the birth date on his passport) or 36 (according to the birth date on his birth certificate). The tribunal concluded:
It is not plausible, in our view, that the authorities would have been interested in someone of his age for military service. Our conclusion is reinforced by the fact that Adil and Said, two other brothers born in the early 1960s, around the same time as the principal claimant, have not been required to serve. [emphasis mine]
[13] Fifth, the tribunal did not believe Mr. Dafalla was arrested upon his arrival at the airport in Sudan because of compulsory military service, was put in a military detention centre, and ordered to report for service. It did not believe his friend Ali Shareef was able to take his passport, get it renewed, arrange to get him out of detention, and spirit him out of Sudan. It said this at page 4:
The first problem with this scenario is with the return of the passport. The reason for the principal claimant being allegedly stopped at the airport was because of similarities between his name and the name of someone else allegedly wanted for military service. It is not plausible that the authorities would allow the principal claimant to keep his passport on his person especially since their plans were to send him to the front anyway.
Secondly, the passport was valid until January 1999. Ali Shareef was taking considerable risks to help the principal claimant. Why would he increase his risks by renewing a passport that did not need to be renewed? In our opinion, this action, as part of a larger escape plan, is not plausible. [emphasis mine]
[14] The tribunal in summary concluded there was insufficient or trustworthy evidence that Mr. Dafalla returned to Sudan in July 1998 because of an amnesty or cease-fire; that he was arrested at the airport and was subsequently detained, or that he escaped from Sudan with the help of a friend.
[15] The tribunal then addressed the question of Mr. Dafalla's activities in the DUP for which, as noted, he had testified that, in the early 1990s, he had been arrested, detained, and brutally treated. The tribunal expressed its views at page 5:
Given our findings above, we are not prepared to accept the principal claimant's assertions about his activities with the DUP and his alleged imprisonments in the early 1990s. Although he stated that the treatment he received in prison caused kidney problems, and he has submitted a number of documents outlining his kidney problems and treatment, his kidney problems predate the detentions. In addition, there is no indication that he was questioned about DUP activities when he entered Sudan in 1998 and given the recent coup attempt and his alleged past history, that is surprising. In our opinion, there is insufficient credible or trustworthy evidence that the principal claimant was a DUP activist with a history of problems with the Sudanese regime. While there is evidence before us that the claimant is a member of the DUP, membership alone is not sufficient to bring one within the definition. [emphasis mine]
[16] The evidence the tribunal referred to concerning Mr. Dafalla's membership in the DUP is a letter dated March 21, 2000 from the Canadian branch of the DUP which reads in part at page 73 of the certified record:
The Democratic Unionist Party of Sudan (DUP) certifies that Tarig Dafalla Mohamed Dafalla (D.O.B.. October 25, 1962) is a member of the DUP. Since his arrival in Canada Tarig has been in contact with us.
. . .
The aim and mandates of the DUP is to expose the present regime in all aspects of violations committed against the people of Sudan which ranges from human rights abuses, genocide, persecution, etc. Restoration of democracy and rebuilding of the new unified Sudan is the goal we struggle to achieve.
Should Tarif Dafalla be forced to return to Sudan, he would be subject to harassment and persecution by the security in Sudan for his connections and activities with the DUP. [emphasis mine]
[17] The tribunal then touched upon the applicants' six-week stay in the United States where the applicants failed to claim refugee status. It said they provided a weak reason for not claiming in the United States -- they believed there was too much crime there. The tribunal expressed its views in the following manner at page 5:
It defies belief that someone from a war-torn country notorious for its violence and human rights abuses would find a leading democracy such as the United States not up to safety standards. Delay in claiming or failure to claim at the first available opportunity is not usually sufficient reason to reject a refugee claim in and of itself. When taken together with our other credibility concerns it is another factor which impugns the claimants' credibility.
THE APPLICANTS' CASE
[18] Counsel for the applicants in the first phase of his argument, challenged a number of factual findings underpinning the tribunal's implausibility conclusions which he says were made because the tribunal misapprehended the evidence; made them without regard to the totality of the evidence or ignored the evidence.
[19] The findings which counsel for the applicants attacked for lack of evidentiary foundation relate to:
(1) when was Tarig Defalla aware of the amnesty/cease-fire, past or present, which would explain his return to Sudan without fear of persecution;
(2) what age range the authorities compelled military service;
(3) the misreading of the medical report; and
(4) the circumstances of his return to Sudan in 1998 and the renewal of his passport.
[20] The second element to the applicants' challenge focusses on Tarig Dafalla's activities in the DUP and the alleged failure of the tribunal to consider whether his claim could succeed based on the documentary evidence of his membership in that party, an obligation which arises even if the tribunal did not believe he had returned to the Sudan in July of 1998 and that he was sought for military conscription.
ANALYSIS
(1) Were the implausibilities unreasonably drawn
[21] Justice Décary in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), makes it abundantly clear that the tribunal, a specialized one, has complete jurisdiction to determine the plausibility of testimony so long as the inferences drawn are based on the evidence and are not unreasonable.
[22] Moreover, Justice Pratte in Shahamati v. Canada (Minister of Employment and Immigration), docket A-388-92, March 24, 1994, said this:
. . . we have not been persuaded that the Board's finding on credibility was either unreasonable or perverse. Contrary to what has sometimes been said, the Board is entitled, in assessing credibility, to rely on criteria such as rationality and common sense.
[23] My review of the arguments put forward by counsel for the applicants and counsel for the respondent as well as a review of the transcript and the documentary evidence leads to a conclusion the applicants have not made out a case for the Court's intervention on this point.
[24] In this connection, I am conscious of the admonition Justice l'Heureux-Dubé wrote in Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 at 844, in the following terms:
[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.
[25] In my view, there was evidence before the tribunal upon which it could reasonably base the implausibility conclusions it drew.
[26] For example, the applicants' challenge based on Tarig Dafalla's alleged uncertainty of when the amnesty/cease-fire was declared cannot stand when his testimony is viewed in its entirety (the return of some political personalities, the planned June 30th celebration and his checking with Sudanese compatriots when he was in Holland). Nor can the tribunal be said to have unreasonably drawn an inference as to Tarig Dafalla's return in early July when the documentary evidence demonstrates there was a coup attempt on the 29th and 30th of June with several members of the DUP being arrested.
[27] The documentary evidence provides the tribunal with sufficient evidence upon which it could base its finding as to the age range for military conscription in the Sudan.
[28] I see no basis for intervention in the alleged misinterpretation by the tribunal of Tarig Dafalla's medical condition. It is noteworthy that his kidney condition required medical intervention in 1983 and another one in May 1993 when allegedly he was under arrest.
[29] Lastly, Tarig Dafalla's own testimony as to the circumstances of his return in July, 1998, his alleged detention, his being allowed to keep his passport and its renewal, supply the evidence for the tribunal's inference.
(2) Did the tribunal fail to assess the applicants' claim
[30] As noted, the applicants argue, despite the tribunal making adverse credibility findings against them, there was still evidence remaining (the March 2000 letter from the DUP) which could have affected the assessment of their claim and the tribunal's failure to consider such evidence constituted an error. Counsel for the applicants relies principally upon Justice Tremblay-Lamer's decision in Seevaratnam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 694 and Justice Gibson's decision in Mylvaganam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1195, as well as Justice O'Keefe's decision in Baranyi v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 987.
[31] Counsel for the respondent countered with a number of cases, including Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, holding that where a claimant is found to be lacking in credibility, it is very difficult, if not impossible, for the tribunal to find credible evidence of an applicant's subjective fear.
[32] Counsel for the respondent also relies upon the Federal Court of Appeal's decision in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238, as to the impact of a finding a witness was not credible.
[33] In Shiekh, supra, Justice MacGuigan said this:
[7] The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim.
[8] I would add that, in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim.
[34] I am not prepared to accept the main thrust of either counsel's argument on this point because, in my view, both approaches do violence and injustice to the tribunal's reasoning when taken as a whole.
[35] A review of those reasons shows the tribunal considered credibility as the determining issue which led to its finding that Tarig Dafalla's return to Sudan in July of 1998 did not happen and that he was not sought by the Sudanese authorities for DUP activities.
[36] The tribunal found, because of the implausibilities it drew, there was insufficient credible or trustworthy evidence on all aspects of his alleged return.
[37] Based on its finding concerning that return, the tribunal ruled it was not prepared to believe Tarig Dafalla's testimony about his activities with the DUP and his alleged imprisonments in the early 1990s. It added its evaluation about his kidney problems and noted there was no indication he was questioned about DUP activities when he testified about re-entering Sudan in 1998. The tribunal concluded there was insufficient credible and trustworthy evidence that Tarig Defalla was a DUP activist with a history of problems with the Sudanese regime.
[38] It was in this context the tribunal mentioned there was evidence before it in the form of membership in the DUP as attested by the Canadian branch of that organization and its comment that membership alone was not sufficient to bring Mr. Dafalla within the definition of a Convention refugee, i.e., one having a well-founded fear of persecution.
[39] My reading of the tribunal's decision does not support counsel for the applicants' argument contending the tribunal failed to consider remaining credible evidence. Clearly, the tribunal considered the DUP-Canada's March 2000 letter, acknowledged it proved his membership in that organization but, assessing the totality of the evidence including the documentary evidence it was not satisfied Mr. Dafalla had established a well-founded fear of persecution because of his political opinion. Since there was evidence upon which the tribunal could base its conclusion, I see no basis for the Court's intervention.
[40] I am not prepared to certify the questions proposed by counsel for the applicants and counsel for the respondent because both were premised on unsubstantiated assumptions flowing from their reading of the tribunal's reasons which I find incorrect.
DISPOSITION
[41] For all of these reasons, this judicial review application is dismissed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
OCTOBER 17, 2001