Ottawa, Ontario, February 13, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review from a decision of the Immigration and Refugee Board (Board) dated December 1, 2004.
[2] The Applicant, Ahmad Badran, applied to the Board for refugee protection in Canada claiming to be a person in need of protection but that claim was denied by the Board on credibility grounds. This application for judicial review asserts that the Board decision was patently unreasonable because the adverse credibility conclusion was based upon an accumulation of misapprehensions and mistakes on points of evidence.
Background
[3] The Applicant came to Canada from the United States but his country of origin was Lebanon. His immigration status in the United States had been that of a conditional permanent resident which was acquired after his 1996 marriage to a United States citizen.
[4] In 1999, the Applicant petitioned to remove the conditions from his United States residency status but, because of the breakdown of his marriage, he was unable to confirm his spouse's approval and she failed to attend for requested interviews.
[5] The United States Immigration and Naturalization Service wrote to the Applicant in October, 2001 advising him that his permanent residency status would be terminated and that he would be scheduled for a removal proceeding. The Applicant appears to have successfully deferred his removal from the United States for some time; but in May, 2004, he entered Canada at Windsor and sought refugee protection.
[6] The Applicant's refugee claim was based upon an alleged fear that he would be persecuted or harmed by Syrian intelligence officials if he returned to Lebanon. He said that his fear was the result of an incident involving an assault and brief imprisonment in Lebanon during a visit in the summer of 2000. That incident commenced with his attempt to prevent two Syrian officials from stealing products from his brother's electronics store. He claimed that he was beaten, sought medical attention and, later the same day, was arrested by the same Syrian officials who had assaulted him. Those officers then offered him freedom and a trip to the airport on the condition that he pay a bribe in the amount of $5,000.00 (U.S.D.). With the assistance of his brother and sister-in-law, the bribe (cash and jewellery) was paid and the officers drove the Applicant to the airport and he immediately departed for the United States.
[7] The Applicant maintained that he was sufficiently fearful of the Syrian Intelligence Service that he elected not to go back to Lebanon to attend his mother's funeral and he has not returned since. He also asserted that he had learned from others in Lebanon that Syrian Intelligence Officers continued to enquire about his whereabouts and had attended at the homes of family members on several occasions searching for him.
Board Decision
[8] The Board rejected the Applicant's claim and held that he had failed to establish with reliable and credible evidence his claim for refugee protection. This adverse credibility ruling was supported by a number of points of perceived factual inconsistencies in the Applicant's evidence and by the Board's negative impression of his testimonial demeanour.
[9] The evidentiary inconsistencies and contradictions which the Board relied upon included the following:
· The Applicant's inability to clearly identify the products which were being stolen from his brother's store at the time of the assault upon him;
· Variations between the Applicant's Personal Information Form (PIF) narrative and his oral testimony with respect to several post-assault events;
· Significant omissions from the PIF which were later added in the Applicant's oral testimony; and
· The Applicant's somewhat confusing testimony with respect to the identity of the Syrian Intelligence Officers who had assaulted him and the individuals who had subsequently demanded the bribe in return for his release from custody.
[10] The Board did take note of some difficulties with some of the translation of testimony but observed that those errors were properly identified by the Applicant's counsel and were of no consequence to the ultimate decision.
Analysis
[11] The Applicant submits that the Board's credibility finding was patently unreasonable because it was based upon an accumulation of misapprehensions and errors in the treatment of his evidence. This was compounded by the problems with the translation which, it is argued, caused confusion and otherwise adversely coloured his testimony.
[12] Counsel for the Applicant identified a number of problems with the Board's treatment of the evidence before it. It was pointed out that the 3-year discrepancy between his testimony and the PIF concerning the duration of his employment with his brother was the result of an innocent cultural tendency to round off numerical estimates. It was also argued that the added detail in the Applicant's testimony which was missing from his PIF was the natural consequence of a 4-hour hearing and the inherent limitations in providing written details in the PIF. It was also suggested that the details added in his testimony were not inconsistent with the PIF narrative and that any of the omissions identified by the Board from the PIF were inconsequential.
[13] The Applicant's problem with recalling the number of hours he was held in custody, the precise products removed from his brother's store, the number of officers involved in his release from custody and the time of his departure from Lebanon were attributed either to his injuries at the time or to the passage of time.
[14] The Board's specific criticism of the Applicant's testimonial demeanour was explained as a simple example of bravado.
[15] The essential problem with the Applicant's submissions on many of these points of evidence is that they are based upon interpretations or explanations of the evidence. While some of these arguments seem sound and persuasive (e.g. the cultural tendency to round off numeral estimates), I have no way of weighing the relative merit of one interpretation over the other. To put it another way, the Applicant cannot establish that the Board's negative views on these evidence issues were based on clear errors in the fact finding process. Simply because the Court might have come to a different conclusion on some of these issues is not a basis for setting aside a credibility finding.
[16] It fell to the Board to weigh all of the Applicant's evidence and to consider his demeanour. Unless it can be established that the Board's performance of that exercise was capricious, perverse or without regard to the evidence, there is no basis for setting aside its decision. Credibility findings by the Board are also entitled to considerable deference: see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (C.A.).
[17] There were, in this case, some obvious and material problems with the Applicant's evidence. Of considerable importance to the Board was the weakness of his testimony about the identity of the attackers and the officials who later took the bribe. The PIF deals with this issue as follows:
I was very upset and tried to stop the Syrians from stealing from my brother. As a result, one of the Syrians hit me on the head repeatedly with the butt of his gun. I had three scars on my head where I was hit. I hit the man back with stick which angered him even more. The Syrian beat me up quite badly. I punched him in the eyes over and over again.
I was also detained in a jail in Syria for 24 hours. In jail, I met a Syrian Intelligence man called Mohaned. This man informed me that if I was willing to pay $5,000.00 USD he could help me to escape from jail. My brother Mohamad paid him cash and the Syrian man helped me to escape to the airport on September 19, 2000. Rather than go through to the regular departure section at the airport I was allowed to go through the Military Departure section in the company of Mohamed (sic). Mohaned drove me to the airport in a white Begio car.
The obvious inference from the PIF narrative is that the two officers involved in the initial assault were different than the officer (Mohaned) who took the bribe and effected his release from custody. When a subsequent amendment was made to the PIF, this point was not clarified except for correcting the spelling of "Mohaned" and the date of the event. However, the Applicant's testimony to the Board clearly indicated that Mohaned was one of the original assailants. He also testified that the second Syrian assailant was also involved with the bribe and in arranging his release from custody. It is not surprising, therefore, that the Board found this aspect of the Applicant's testimony "internally discrepant". The plausibility of the Syrians having a continuing interest in the Applicant's whereabouts is also in doubt given that his departure to the United States would have been known to them.
[18] The Board also had several other concerns about the Applicant's testimony. For example, there were three different versions offered by the Applicant for the amount of time he was held in custody. In the PIF, it was 24 hours; in the amended PIF, it was 5 hours and in his testimony, it was 2.25 hours. While a difference of less than 3 hours might be explainable, it is difficult to be critical of the Board's scepticism over the large variation between the initial PIF narrative and the Applicant's testimony to the Board.
[19] Similarly, the fact that the Applicant made no mention in the PIF of the payment of a significant part of the bribe, in the form of jewellery provided by his sister-in-law, is a matter that the Board could fairly consider in its credibility analysis. Indeed, the PIF lacked a lot of information that one could reasonably expect to be there and the Board's treatment of these omissions was not unreasonable. One of the problems with leaving important details out of a PIF is that leaves the way open for later embellishment largely unhindered by earlier descriptions.
[20] It is not enough for the Applicant to simply identify errors by the Board with respect to some of its findings of fact or in its interpretation of the evidence. The decision will stand if the conclusion can still be reasonably based upon other factual findings reasonably made: see Stelco Inc. v. British Steel Canada Inc. [2000] 3 F.C. 282 (C.A.). The facts of this case bring it within the holdings by this Court in Kanagasabapathy v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 111 and in Miranda v. Canada(Minister of Employment and Immigration)[1993] F.C.J. No. 437. In the latter case, Justice Joyal described the appropriate approach to be taken by the Court in a case such as this. He held as follows:
For purposes of judicial review, however, it is my view that a Refugee Board decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable.
I have now read through the transcript of the evidence before the Board and I have listened to arguments from both counsel. Although one may isolate one comment from the Board's decision and find some error therein, the error must nevertheless be material to the decision reached. And this is where I fail to find any kind of error.
It is true that artful pleaders can find any number of errors when dealing with decisions of administrative tribunals. Yet we must always remind ourselves of what the Supreme Court of Canada said on a criminal appeal where the grounds for appeal were some 12 errors in the judge's charge to the jury. In rendering judgment, the Court stated that it had found 18 errors in the judge's charge, but that in the absence of any miscarriage of justice, the appeal could not succeed.
This is the point I am trying to establish here. One may look at the decision of the Board, then one may balance it off against the evidence found in the transcript and the evidence of the claimant himself in trying to justify his objective as well as subjective fears of persecution.
On the basis of that analysis, I find that the conclusions reached by the Refugee Board are well-founded on the evidence. There can always be conflict on the evidence. There is always the possibility of an opposite decision from a differently constituted Board. Anyone might have reached a different conclusion. Different conclusions may often be reached if one perhaps subscribes to different value systems. But in spite of counsel for the applicant's thorough exposition, I have failed to grasp forcefully the kind of error in the Board's decision which would justify my intervention. The Board's decision, in my view, is fully consistent with the evidence.
[21] I can find nothing in the Board's findings or in its approach to the issue of credibility which is sufficiently troubling that it would constitute patent unreasonableness. In the result, I would dismiss this application for judicial review.
[22] Neither party requested that a question be certified and, therefore, no question will be certified.
ORDER
THIS COURT ORDERS that:
1. this application for judicial review is dismissed; and
2. there is no question to be certified.
" R. L. Barnes "
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10631-04
STYLE OF CAUSE: AHMAD BADRAN
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 7, 2006
REASONS FOR ORDER
and ORDER: THE HONOURABLE MR JUSTICE BARNES
APPEARANCES:
Dr. Sandra Saccucci Zaher for the Applicant
Ms. Nicole Butcher for the Respondent
SOLICITORS OF RECORD:
Sandra Saccucci Zaher for the Applicant
Barrister & Solicitor
Windsor, Ontario
John H. Sims, Q.C. for the Respondent
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario