Date: 19991105
Docket: IMM-6302-98
Ottawa, Ontario, the 5th day of November 1999
Present: The Honourable Mr. Justice Pinard
Between:
MOHAMED AZZEDIN TIGHRINE
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision dated September 29, 1998, declaring that the applicant is not a Convention refugee, is quashed and the matter is referred back to a differently constituted panel of the Convention Refugee Determination Division for rehearing.
JUDGE
Certified true translation
Monica F. Chamberlain
Date: 19991105
Docket: IMM-6302-98
Between:
MOHAMED AZZEDIN TIGHRINE
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision by the Convention Refugee Determination Division dated September 29, 1998, declaring that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act.
[2] The panel concluded that there was not sufficient evidence to establish that the applicant had a well-founded fear of persecution on the grounds of perceived political opinion for the following reasons: implausibility and the applicant"s lack of subjective fear.
[3] As seen in the following excerpt from the decision, three negative inferences led the panel to doubt the applicant"s credibility and disbelieve his story:
| [translation] . . . The panel has difficulty believing the story. First the claimant alleges that he was persecuted in 1980, deported, interned, incarcerated. However, he only thought to leave in 1993. |
| The panel also finds it difficult to believe the way in which the claimant learned that his neighbour was arrested and gave the claimant"s name under torture. According to the claimant"s testimony, this event occurred on May 30 and, as if by chance, his brother-in-law, who normally lives in another city, happened to be there and, on May 31 or June 1, warned the claimant that his name had been mentioned and that the police were looking for him. The panel finds the applicant"s explanations unreasonable and does not believe the applicant"s claims. |
| Moreover, the information about the claimant"s itinerary in the port of entry document [reference omitted] and the Personal Information Form (PIF) [reference omitted] is not completely consistent. In the PIF, the claimant only mentions three countries he went through, Greece, Italy and the United States. However, in the port of entry document, the claimant states that he also went through France, Germany and Holland before arriving in the United States and finally in Canada. This other unexplained omission leads us to doubt the applicant"s credibility. |
[4] When this type of panel draws an inference, it must be supported by the evidence, which is not the case for two of the three negative inferences at issue.
[5] The panel pointed out the failure to mention France, Germany and Holland in the applicant"s PIF. However, the evidence shows that the applicant never went to Germany and only passed through France and Holland. The difference between the applicant"s answer on the PIF and the one on the port of entry document can be explained simply by the difference in the questions: the PIF asks for a list of countries where the claimant "resided" and the port of entry document asks for the precise itinerary of the route to Canada.
[6] Nor is the negative inference concerning the [translation] "way in which the claimant learned that his neighbour was arrested and gave the claimant"s name under torture", supported by the evidence. On the contrary, in his testimony, the claimant explained that his brother-in-law was a commander in the police force and that although he lived in another city, he often came to Algiers and stayed with his sister. Under the circumstances, I do not see anything unreasonable about the applicant"s explanations and the way in which he was warned by his brother-in-law.
[7] Thus, since two of the three negative inferences drawn by the panel to reject the applicant"s story are not supported by the evidence, I believe that the entire decision is undermined and I therefore feel justified in intervening.
[8] Consequently, the application for judicial review is allowed, the impugned decision is quashed and the matter is referred back to a differently constituted panel of the Convention Refugee Determination Division for rehearing.
JUDGE
OTTAWA, ONTARIO
November 5, 1999
Certified true translation
Monica F. Chamberlain
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-6302-98
STYLE OF CAUSE: MOHAMED AZZEDIN TIGHRINE
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 6, 1999
REASONS FOR ORDER OF PINARD J.
DATED: NOVEMBER 21, 1999
APPEARANCES:
DENIS BURON FOR THE APPLICANT
MARIE-CLAUDE DEMERS FOR THE RESPONDENT
SOLICITORS OF RECORD:
DENIS BURON FOR THE APPLICANT
MARIE-CLAUDE DEMERS
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada