Date: 19990322
Docket: IMM-2636-98
BETWEEN:
Madjid YALA
Applicant
AND
THE MINISTER
Respondent
REASONS FOR ORDER
TEITELBAUM J.
INTRODUCTION
[1] This is an application for judicial review of an Immigration and Refugee Board decision dated May 5, 1998, rejecting the applicant"s claim on the ground that he is not a Convention refugee. The applicant is asking this Court to set aside the decision and refer the matter back to a new panel of the Board.
FACTS
[2] The applicant, Madjid Yala, an Algerian citizen, claims refugee status because he fears persecution for reasons of imputed political opinion and membership in a particular social group, Algerian merchant marine officers.
[3] The applicant has been a merchant marine officer since 1978. On May 9, 1997, while on leave, he went fishing near his home in Ain-Taya. On the way home, he alleges he was picked up by four men in a van. After finding out who he was and what kind of work he did, the men allegedly pointed a gun at him to persuade him to smuggle two men into Belgium or Germany. Two of the men had beards, and the applicant maintains they were Muslim fundamentalists. However, they did not reveal who they were or whether they belonged to any organization. They allegedly asked him when he would be going back to work and forced him to agree to co-operate with them when he went back to work in July 1997. They dropped him off about 15 kilometres from his home and threatened to kill him and attack his family if he backed out or informed the police. He alleges he lived with his aunt and only very seldom went back home. He claims he had no choice but to leave Algeria to save his life. He went to Tunis, in Tunisia, in May 1997 to obtain an American visa, which he was issued. He then returned to Algeria and left again on July 8, 1997. He passed through Spain and stayed in the United States before coming to Canada and claiming refugee status on July 31, 1997.
Decision of the Refugee Division
[4] The Refugee Division determined the applicant not to be a Convention refugee. According to the Board, his account was not credible. The Board found that the alleged pickup by Muslim fundamentalists was not believable because his assailants never identified themselves, appeared only once, and never attempted to contact him or query his family. The Board also found his behaviour inconsistent with his alleged fear of persecution. He waited three weeks before contemplating leaving Algeria, despite the fact that he knew other victims of similar threats. After obtaining an American visa in Tunisia on May 22, 1997, he returned to Algeria and stayed there for a month and a half before leaving on July 8. Furthermore, he did not claim refugee status when passing through Spain or staying in the United States for a month. He explained that he had opted for Canada because he speaks French. The Board found that explanation unsatisfactory given that he speaks English too.
SUBMISSIONS OF THE PARTIES
[5] The applicant argues that the Board made an unreasonable error in finding him not credible and his fears of persecution not well founded. In his opinion, the Board did not have valid reasons for questioning his credibility, and its finding was unreasonable in light of the facts and his testimony. He also argues that the Board made an unreasonable error in finding his behaviour"the fact that he did not claim refugee status in Spain or the United States"inconsistent with his alleged fears of persecution. The Board erred in disregarding the facts and his explanations in that regard.
[6] The respondent argues that the Board did not err, since the facts do not suggest the applicant was a victim of persecution at the hands of Muslim fundamentalists. The applicant"s record puts in evidence an isolated incident at the hands of unidentified individuals. The applicant did not discharge his burden of showing there is a reasonable chance of persecution, subjectively and objectively, if he is returned to Algeria. Thus, the respondent maintains that the Board did not err in finding there were no fears of persecution, since it had regard to all the facts, the applicant"s behaviour, and his explanations, which it found unsatisfactory.
ISSUES
[7] The applicant raises two issues:
| 1) whether the Board erred in finding the applicant not credible; |
| 2) whether the Board erred in disregarding the applicant"s explanations for not having claimed refugee status while in Spain or the United States, and in finding that his fears of persecution were not well founded. |
ANALYSIS
Credibility of the applicant
[8] The applicant argues that the Board erred in finding his account implausible on the grounds that the Muslim fundamentalists had not tried to contact him or his family after the incident of May 22, 1997, that he had returned to Algeria when he had in hand a passport and an American visa issued during his stay in Tunisia, and that he had not claimed refugee status while in transit through Spain or staying in the United States.
[9] The applicant submits that this finding is unreasonable because he explained that those men could not have contacted him since he did not go back to live at home and went to live with his aunt after the incident, that he returned to Algeria to retrieve some documents, and that he was only passing through Spain in transit and, once in the United States, after thinking it over, chose to come to Canada since he could live here in French, a language he grasps better than English.
[10] The Board has all the required discretion to assess the credibility of people claiming refugee status. The Board had regard to all the facts in the record and the applicant"s explanations. Despite his explanations, the Board found the applicant not credible. In such a case, it is not for the Court to substitute its opinion for the Board"s, and the Court must not intervene unless it is shown that the decision was unreasonable in light of the facts of the case at bar. In my view, the applicant has not shown that the Board"s decision was unreasonable.
Unfounded fears of persecution
[11] The applicant argues that the Board erred in disregarding his explanations for waiting until he was in Canada before claiming refugee status, and that the time taken to make a claim and the fact that refugee status was not claimed in transit countries are only one of the factors to which the Board must have regard in assessing the fear.
[12] The Board"s decision shows that the Board found the applicant"s behaviour inconsistent with his allegations that his life was in danger. The Board had regard to the fact that he did not contemplate leaving Algeria until three weeks after the incident, that he returned to Algeria and stayed there for a month and a half after obtaining a visa for the United States, that his explanations that he wished to retrieve some documents were unsatisfactory and did not reflect his fears, that the visa was issued on May 22, 1997, and he did not leave Algeria until July 8, that he did not claim refugee status in Spain or the United States, and that his explanation regarding the time he spent thinking it over and his preference for living in French in Canada was unsatisfactory.
[13] The applicant argues that the time taken to claim status and the opportunity to claim protection in transit countries are but one factor to which the Board must have regard in assessing the fear.
[14] In the case at bar, the Board"s reasons show that the decision was not based solely on the fact that he did not seek the protection of Spain or the United States. The Board had regard to his behaviour from the moment of the incident, his return to Algeria after his stay in Tunisia to obtain a visa, the date of his departure, and his explanations. In my view, the Board"s finding does not appear unreasonable in light of the circumstances of the case at bar.
CONCLUSION
[15] The applicant has not satisfied me that the Board committed an error warranting this Court"s intervention.
[16] The application for judicial review is dismissed.
[17] The parties did not submit any question for certification.
Max M. Teitelbaum
J.F.C.C.
Ottawa, Ontario
March 22, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2636-98
STYLE OF CAUSE: MADJID YALA
- AND - THE MINISTER
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MARCH 19, 1999
REASONS FOR ORDER OF TEITELBAUM J.
DATED MARCH 22, 1999
APPEARANCES:
Eveline Fiset
FOR THE APPLICANT
Patricia Deslauriers
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Eveline Fiset
Montréal, Quebec
FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada