Date: 20060501
Docket: IMM-1972-05
Citation: 2006
FC 549
Ottawa, Ontario,
May 1, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
AHMAD
YAMA (YOUNG) BAKTASH
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application under section 72(1) of the Immigration and Refugee Protection
Act, S.C. 2001, c.27 (IRPA) for judicial review of a decision, dated March
8, 2005 (Decision), of the Refugee Protection Division of the Immigration and
Refugee Board (Board), wherein it was determined that Ahmad Yama (Young)
Baktash (the Applicant) was not a Convention refugee or a person in need of
protection.
BACKGROUND
[2]
The Applicant is a
citizen of Afghanistan. He was born in 1978 and is Tajik by
ethnicity and Sunni Muslim by religion. He opened a bookstore in Kabul at the end of 2000, selling books in the Dari, Pashtu and
English languages. He left Afghanistan on August 18, 2001. After traveling
through Pakistan and the United States he arrived in Canada on August 26, 2001 and made a refugee claim at the Canadian
border.
[3]
The Applicant’s first
refugee claim was denied, but his application for judicial review of that
decision was allowed. He filed a first Personal Information Form (PIF) on
October 24, 2001. At the Board’s request, he filed a second PIF on January 20,
2005. The second PIF is identical to his first PIF.
[4]
According to the
Applicant’s PIF, in early 2001 he was paid $10 U.S. by workers at Noor Hospital
to distribute pamphlets and magazines to customers at his bookstore. He was told
that he could keep the proceeds of the magazines. The Applicant quickly realized
when selling the magazines that they were about Christianity and contained
pictures of living things, both of which were prohibited at the time by the
Taliban government. Realizing that the magazines would not be acceptable to the
Taliban, he placed them in a corner of his store. He put the pamphlets at the
back of the store.
[5]
The Applicant says he
sold seven of the twenty magazines between January and July 2001. He did not,
however, distribute any pamphlets. In mid-July 2001, three armed Taliban members
came to the store. They found the pamphlets and magazines. Some books were burned
in front of him and the Applicant says he was beaten to the point of fainting.
[6]
In November 2001, the
Applicant’s father returned to the store to sell the remaining books. The
father was beaten by the Taliban who warned him that, if the Applicant returned
home, the Applicant would immediately be handed over to the authorities and
would face time in prison for selling anti-Islamic materials.
[7]
The Applicant says he
went into hiding and then left Afghanistan. He claims a fear of returning to Afghanistan because he is wanted by authorities as a
seller of Christian magazines and other anti-Islamic materials. He says that he
would face imprisonment, beatings, and possibly forced conscription into the
military. He also fears persecution based on his membership within the Tajik
minority.
DECISION
UNDER REVIEW
[8]
The Board found
inconsistencies in the evidence and concluded that the Applicant’s claim of
risk in Afghanistan was not credible.
[9]
The Board found it
implausible that the Applicant would have sold Christian materials in his
store. He claimed that he would approach customers if he thought they spoke
English and would show them the magazines. Given the Taliban’s religious
beliefs and practices at the time, the Board found this sales method
implausible.
[10]
The Board also noted
that, while the Applicant planned to sell the materials quickly, after six
months he had only sold seven of twenty magazines.
[11]
The Board found it
unreasonable that the Applicant would have left Christian pamphlets in the back
of his store because he did not hand them out and he did not expect to earn
money from them.
[12]
The Board also found
no credible evidence about the Applicant’s father, and doubted whether the
father would have been able to re-open the store to sell the remaining books in
November 2001, as this would have happened when the Taliban were in power and
shortly after the Applicant’s father was beaten at the store for trying to sell
books.
[13]
The Board did not
find plausible the Applicant’s claim that he fears returning to Afghanistan because he committed a crime against
Islam. The Applicant stated that he is perceived in Afghanistan as having changed religions and as
having preached Christianity. The Board rejected this fear because such
information was not contained in the Applicant’s PIF. The Board found this to
be a significant omission. The claim was only made at the hearing.
[14]
The Board also noted
the Applicant’s failure to explain adequately why he did not mention in his PIF
that two months after he left Afghanistan the Taliban searched for him at his
home. The Applicant claimed his PIF only dealt with what happened to him
personally, but the Board noted that this explanation was inconsistent with
references in the PIF related to events involving the Applicant’s father.
[15]
The Board also
examined country conditions and held that it was not credible that the
Applicant would be subjected to execution, imprisonment or other persecution.
The Board noted that the Taliban has lost its political power, and that the
Transitional Islamic State of Afghanistan (TISA) has governed since December
2001. The Board cited a Department of State Report dated September 15, 2004
that showed freedom of religion is provided for under the new Constitution for Afghanistan and that there is a small Christian
community that is able to congregate freely and worship. The Board also found
the Applicant’s claim that he would be at risk today would not be credible even
if it had found that the Applicant sold Christian magazines.
[16]
The Board did not
find it reasonable that the Applicant failed to mention in his PIF that he also
fears religious persecution from warlords in Afghanistan
other than the Taliban.
[17]
The Board also found
that the only reports of forced military conscription are from northern Afghanistan. Since the Applicant is not from that
area, the Board held it is not plausible that he would be forcibly conscripted
upon return to Kabul.
[18]
The Board noted that the
Applicant’s counsel submitted that membership in the Tajik minority group was
no longer a basis for the Applicant’s claim.
[19]
The Board concluded
by noting that there is factional fighting in Afghanistan,
and the security situation is unstable. It suggested there may be humanitarian
and compassionate grounds against the Applicant’s returning to Afghanistan, but held that the Applicant is not a
Convention refugee or a person in need of protection.
ISSUES
[20]
The Applicant raises
the following issues:
1.
Did the Board
err by misinterpreting or misapplying the definition of a Convention refugee?
2.
Did the Board
err by ignoring or misapprehending the evidence before it, or by basing its Decision
on erroneous findings of fact made in a perverse or capricious manner or
without regard to the evidence?
APPLICANT’S
SUBMISSIONS
[21]
The Applicant submits
that, regardless of whether he was a credible witness, he may be found to be a
Convention refugee if his perceived religious activities are likely to lead to
his arrest and punishment (Attakora v. Canada (Minister of Employment and Immigration)
(1989), 99 N.R. 168 (F.C.A.)). He has provided evidence that he would be
perceived as carrying on Christian activities. The documentary evidence
indicates that a person selling Christian materials in Afghanistan would be regarded as preaching
Christianity and as having converted to Christianity. The Applicant submits
that the Board erred in its reliance on the evidence. While there may be
evidence that Christians can freely exercise their faith, the Applicant submits
this is not the same as a person who has converted from Islam to Christianity and
who then proceeds to proselytize Muslims.
[22]
The Applicant also says
the Board ignored documentary evidence that indicates the situation in Afghanistan continues to be unstable and that there is
little recognition of the rule of law. There was documentation that confirmed
unlawful killings by security forces and the use of torture in jails by
officials.
[23]
The Applicant argues
that the Board resorted to pure speculation and conjecture in determining he
would not have sold Christian materials in the manner he stated (Canada (Minister
of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.)).
Moreover, he says the Board erred by failing to provide reasons for this
finding.
[24]
The Applicant also argues
that the Board imposed Western values or concepts in a situation where other
values and concepts prevail. He argues that the Board erred in law by requiring
that a lease for the store be provided when he told the Board that the lease
was made by verbal agreement only. The Applicant was not obliged to provide
documentation to substantiate this claim and, in the absence of contradictory
evidence, the Board should not have connected his failure to offer
documentation to a lack of credibility (Ahortor v. Canada (Minister of
Employment and Immigration)(A93), 65 F.T.R. 137, [1993] F.C.J. No. 705 (QL)
(T.D.); Attakora, above).
[25]
The Applicant submits
that the Federal Court of Appeal in Attakora held that there may be less
of a need to examine the credibility of a claimant whose account of past
persecution is corroborated by his country’s record of human rights abuses. The
documentary evidence provided by both the Applicant and the Refugee Protection
Officer (RPO) demonstrated that the current situation in Afghanistan continues to be unstable. This evidence
confirmed a rise in Taliban activity and fighting between local militias.
[26]
The RPO pointed out
that the Applicant had provided answers in a straightforward manner and had not
embellished his evidence. The Applicant submits that the Board’s finding that his
story contains minor inconsistencies, or that parts of the story are
exaggerated, is not sufficient to reject all of the evidence (Yaliniz v. Canada
(Minister of Employment and Immigration), [1988] F.C.J. No. 248, (1988) 7
Imm. L.R. (2d) 163 (QL) (F.C.A.); Armson v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 800, (1989) 9 Imm.
L.R. (2d) 150 (QL) (F.C.A.)). He submits that a Court is as capable as the
Board of deciding whether the series of events he described might reasonably
have occurred.
[27]
The Applicant also
submits that the Board’s determination that he was not expecting to receive
money for the pamphlets, and that he placed the pamphlets where they could be
found, are both findings that are contrary to the evidence and, therefore,
constitute errors in law.
[28]
The Applicant also argues
that the Board’s comments that he has not sought legal assistance to find out
whether he could be charged or wanted in Afghanistan demonstrate that the Board misunderstood
the evidence and the nature of the Applicant’s fear. He contends that he fears
extra-judicial persecution, not legal persecution.
[29]
At the oral hearing
of this matter before the Court, Applicant’s counsel said that the Board made
the same errors as the first board made and emphasized that the Board had
ignored the “similarly situated persons test,” and had even failed to conduct a
separate analysis in relation to section 97 issues.
RESPONDENT’S
SUBMISSIONS
[30]
The Respondent
submits that the Board’s negative credibility finding was reasonably open to
it. The Board’s assessment of credibility should be treated with a high degree
of deference and the Board is entitled to rely on rationality and common sense
in this regard (Shahamati v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No. 415 (QL) (F.C.A.). Assessing evidence is also within the
discretion of the Board. (He v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 1107 (QL) (F.C.A.)).
[31]
The Respondent says
the Board is entitled to apply its own understanding of human behaviour when
determining whether an applicant’s story is credible (Gonzalez v. Canada (Minister
of Citizenship and Immigration), [1999] F.C.J. No. 805 (QL) (T.D.); Qasem
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1182; Mehmet
Aktan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1222,
[2002] F.C.J. No. 1661 (QL)). It was open to the Board to find it implausible
that the Applicant would have sold the Christian materials during the Taliban
rule by approaching strangers. The Board noted that it was not believable that
the Applicant was willing to sell magazines for a few cents when he had already
been paid $10 USD to sell them, or that he would keep the Christian pamphlets
in the store when they would not be sold.
[32]
The Respondent also
argues that the Board correctly drew adverse credibility findings from
discrepancies between the Applicant’s PIF and his testimony, and also from
omissions in his PIF. There were inconsistent dates between the Applicant’s
PIF and his testimony regarding when the Taliban discovered the Christian
content of the magazines and materials. The Respondent notes that the Applicant
omitted to mention in his PIF that he was wanted by the Taliban for converting
to Christianity or preaching Christianity, and also failed to mention that the
Taliban visited his home in Afghanistan one or two months after he left the
country. It was reasonable for the Board to have considered omissions from the
Applicant’s PIF, and to find that such omissions undermined the credibility of
his story (Grinevich v. Canada (Minister of Citizenship and Immigration),
[1997] F.C.J. No. 444 (QL) (T.D.); Lobo v. Canada (Minister of Citizenship
and Immigration), [1995] F.C.J. No. 597 (QL) (T.D.)).
[33]
The Respondent also submits
that if a central incident is disbelieved, as in the case at bar, other alleged
errors are of no consequence (Yang v. Canada
(Minister of Employment and Immigration), [1995] F.C.J. No. 121 (QL) (F.C.A.)).
[34]
The Respondent says
the Board was reasonable in not being persuaded that the Applicant would be
persecuted by the Taliban if he returned to Afghanistan.
There is no indication that the Applicant is being sought by any authority
today.
[35]
Finally, the
Respondent says that, in order to qualify as a Convention refugee because of
the general human rights situation, the Applicant had to link the general
situation in Afghanistan to his personal circumstances. In the
absence of any evidence indicating a threat to the Applicant personally, he
could not be a Convention refugee (Sheikh v. Canada (Minister of Employment
and Immigration), [1990] 3 F.C. 238 (F.C.A.)).
ANALYSIS
[36]
Credibility findings
are reviewed on a standard of patent unreasonableness (Aguebor v. Canada (Minister
of Employment and Immigration) (1993), 160 N.R. 315, [1993] F.C.J. No. 732
(QL) (F.C.A.); Pissareva v. Canada (Minister of Citizenship and Immigration),
[2000] A.C.F. No. 2001 (QL) (T.D.); Umba v. Canada (Minister of Citizenship
and Immigration), [2001] FCT 582). In this case, it was open to the Board
to find the Applicant’s claim was not credible.
[37]
It was open to the Board
to doubt the Applicant’s story that he sold prohibited books to strangers by
approaching them if they spoke English. Although the Applicant claimed he only
approached customers who had visited the store at least once before, the Board
had reason to find that the Applicant’s method of selling the magazines was
imprudent and unbelievable, given the life-threatening consequences if he had
been caught. It was also not a reviewable error to find it unbelievable that
the Applicant kept the pamphlets inside his store. The pamphlets would not draw
revenue, but they would endanger the Applicant. Since the evidence
demonstrated that the Taliban religious police passed by the Applicant’s
bookstore on occasion, the Board reasonably found that it was not credible he
would keep the pamphlets in the store.
[38]
Since the Board found
that the sale of Christian materials in the store was not credible, it followed
that the claims of the Applicant’s beatings and of his father’s efforts to
reopen the store were also not credible, since they were logically linked to
the sale of the Christian materials.
[39]
The jurisprudence
supports the position that an omission of material facts or of information that
is central to the claim from a PIF can form the basis for an adverse finding of
credibility (El Masalati v. Canada (Minister of Citizenship and Immigration),
2005 FC 1311 (CanLII), referring to Robles v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 520 (QL), 2003 FCT 374 at
para. 43; Polgari v. Canada (Minister of Citizenship and Immigration),
2001 FCT 626 (CanLII) at para. 13; Erdos v. Canada (Minister of Citizenship
and Immigration), 2003 FC 955 at para. 24, referring to Grinevich v.
Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 444 (QL)
(F.T.D.)). The Applicant omitted critical information by failing to mention
that someone had visited his house searching for the person who had sold the
magazines. It was open to the Board to draw an adverse credibility inference
based upon the Applicant’s failure to include this information. Similarly, the
Board was entitled to find that the Applicant’s fear of persecution at the
hands of warlords should have been included in his PIF. Although circumstances
have changed in Afghanistan, the Applicant could still have amended
his PIF to include new information (Udeagbala v. Canada (Minister of Citizenship
and Immigration), 2003 FC 1507 (CanLII)).
[40]
The Applicant raises
a variety of issues but fails to undermine the fundamental basis of the
Decision from which everything else follows. The Board specifically found that
it was not plausible that the “claimant would have sold Christian material in
his store in the manner that he claims he did.” The Decision reveals the Board
just could not believe the central tenet of the claim: i.e. that he had sold
Christian materials. The Board examined all of the evidence in arriving at this
conclusion and it based its Decision on common sense and rationality, as it is
entitled to do. See Gonzalez v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 805 (QL) (T.D.). It was open to the
Board to find it implausible that the Applicant would have sold Christian
materials during the Taliban rule by approaching strangers. As Justice Sharlow
pointed out in Gonzalez:
27. In my
view, it was open to the CRDD to assess the plausibility of the applicant's
conduct as it did, by considering her story, and the manner in which it was
told and tested in the course of the hearing, against the backdrop of other
evidence and its own understanding of human behaviour. The comments of
O'Halloran J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357
(B.C.C.A.) reflect my view:
In short, the
real test of the truth of the story of a witness ... must be its harmony with
the preponderance of the probabilities which a reasonable and informed person
would readily recognize as reasonable in that place and in those conditions.
28. I see
nothing in the Giron case that is inconsistent with this
conclusion. In this regard, I refer to the comments of Décary J.A.
in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R.
315 (F.C.A.) at 316-7:
There is no
longer any doubt that the Refugee Division, which is a specialized tribunal,
has complete jurisdiction to determine the plausibility of testimony: who is in
a better position than the Refugee Division 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 our
intervention, its findings are not open to judicial review.
[41]
In addition, the
Board in the case at bar supported its basic conclusions with other findings,
such as the contradictions and omissions in relation to the Applicant’s PIF.
[42]
All of these findings
were of a factual nature and were clearly made with regard to the evidence
before the Board. The Court should not interfere with them.
[43]
Once these basic
findings are taken into account, the whole basis of the Applicant’s claim
disappears. The Board looked at country conditions, but there was really no
need to do so, given its findings of fact about the central tenets of the
claim.
[44]
Given those central
findings, there was no need for the Board to consider the risks faced by
similarly situated persons, because the Applicant had not established any
connection with such persons (i.e. Christian proselytizers) and, on the facts
of this case, there was no need to do a separate section 97 analysis because
the Board could not accept the Applicants basic evidence about what had
happened to him.
[45]
I have looked at each
of the issues raised by the Applicant, but they do not undermine or overcome
this basic aspect of the Decision. There was no reviewable error in this regard
and nothing that would justify sending the matter back for reconsideration.
[46]
In sum, it was not
unreasonable for the Board to find that the core of the Applicant’s claim was
not credible. It follows that there was no reviewable error in the Board
finding that the Applicant was not a Convention refugee or person in need of
protection.
ORDER
THIS COURT
ORDERS that
1.
The application for
judicial review is dismissed.
2.
There is no question
for certification.
“James
Russell”
Judge
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