Omar v. Canada (Minister of Citizenship and Immigration)

Ottawa, Ontario, the 3rd day of June 2004

Present: THE HONOURABLE MR. JUSTICE SIMON NOËL

BETWEEN:

IFRAH ABDILLAHI OMAR

ABDILLAHI KADIR ABDI

AWAD KADIR ABDI

ABDOULFATAH KADIR

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1] This is an application for judicial review of the decision by the Refugee Division of the Immigration and Refugee Board (the CRDD), dated February 3, 2003, that the applicants are not Convention refugees.

[2] The applicants allege that they have a well-founded fear of persecution because of their political opinions, their membership in a social group and their family ties. The applicants also allege that there is an immediate risk to their lives and that if they are returned to Djibouti they will be subjected to cruel and unusual treatment.

[3] Essentially, the principal applicant (hereinafter the applicant) alleged before the CRDD that she had been raped by the Djiboutian authorities when she was arrested and held because of her political opinions. When she was questioned concerning this incident, the record indicates that her testimony was contradictory (see in particular page 4 of the CRDD reasons in English, dated February 3, 2003) and that the CRDD was unable to reconcile significant differences in the account of the events. In short, the CRDD considered the applicant's testimony to be improbable in regard to the essential aspects of the claim and her explanations were not considered credible.

[4] The applicants allege in particular that the CRDD erred in failing to consider fairly and equitably all of the evidence put before it and in basing its decision on findings of fact that were made in a perverse and capricious manner.

[5] The CRDD is a specialized tribunal which, as was held in Aguebor v. Canada (Minister of Employment and Immigration) (F.C.A.), [1993] F.C.J. No. 732, is in the best position "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 the Court's intervention, its findings are not open to judicial review.

[6] In the case at bar, the applicants have the onus of demonstrating that the inferences drawn by the tribunal could not reasonably have been drawn. On the basis of my assessment of the evidence presented, the applicants have not discharged that onus. The contradictions in the applicant's testimony are so great that it is impossible to reconcile them, even taking into account the traumatic and cultural aspects that would have affected her ability to recall all of the events in detail. For example, the record indicates that the applicant wrote in her personal information form that she had been raped in November 1997, but prior to her hearing she asked that the date be altered to January 1998. The applicant's counsel explained that this error was due to a misunderstanding resulting from the translation, while the applicant herself stated in her affidavit that the error was attributable to her previous lawyer. The applicant's testimony is also contradictory in regard to the number of incidents of rape and her state of mind following the incident, and the number of persons who were in the room.

[7] The applicant's counsel argued that the Court should take account of the parts of the applicant's story that had been considered credible and suggested that a missing portion of the hearing transcript might perhaps have explained further the contradictions specifically concerning the number of participants in and witnesses to the rape. Although I agree with counsel concerning the respondent's duty to file all of the hearing notes, I have reviewed the submissions in detail and in this case I am fully satisfied that in view of the evidence as a whole and the importance of the other contradictory aspects in the applicant's testimony, the absence of notes potentially affects only a very limited number of the contradictions overall. Consequently, I am of the opinion that the position taken by the CRDD as to the improbability of the applicant's story and the lack of credibility is supported by the evidence as a whole. I therefore consider the CRDD decision to be reasonable.

[8] Because the CRDD did not commit any patently unreasonable error, the Court need not intervene in its decision.

[9] The parties have not suggested any questions for certification.

JUDGMENT

THE COURT ORDERS THAT:

- This application for judicial review is dismissed and no question will be certified.

"Simon Noël"

Judge

Certified true translation

Suzanne M. Gauthier, C Tr, LLL

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET: IMM-72-03

STYLE: IFRAH ABDILLAHI OMAR ET AL.

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: June 2, 2004

REASONS: Mr. Justice Simon Noël

DATED: June 3, 2004

APPEARANCES:

Clarel Midouin FOR THE APPLICANT

Marie Crowley FOR THE RESPONDENT

SOLICITORS OF RECORD:

Clarel Midouin FOR THE APPLICANT

Clarel Midouin, LL.L-LL.B

Ottawa, Ontario

Deputy Attorney General of Canada FOR THE RESPONDENT