Date:
20060529
Docket:
IMM-6413-05
Citation:
2006 FC 627
Ottawa, Ontario, May 29, 2006
Present: Mr. Justice Simon Noël
BETWEEN:
ABDULLAH
SHAH
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial
review under section 72 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA) of a decision of the Refugee Protection
Division (RPD) dated September 29, 2005. The RPD, by this decision, dismissed
the refugee claim of Abdallah Shah (the applicant). According to the RPD, the
applicant is not a Convention refugee or a person in need of protection within
the meaning of sections 96 and 97 of the IRPA. The RPD’s decision is based on
considerations related to the applicant’s credibility.
I. Issues
[2] The issues are the following:
- Did the RPD in finding that the applicant was not
credible commit an error of fact?
- Did the RPD err in deciding that the applicant’s refugee
claim had no credible basis?
- Did the RPD demonstrate bias during the hearing?
II. Conclusion
[3] For the following reasons, I answer
the first two questions in the affirmative, and it is unnecessary to answer the
third. In any event, the applicant has failed to identify the factual basis for
an allegation of bias in his memorandum. The application for judicial review is
therefore allowed and the matter is referred back to the RPD for
redetermination by a differently constituted panel.
III. Facts
[4] The applicant is a citizen of
Afghanistan. The facts described below are taken from his Personal Information
Form (PIF) and the “Background Information” form (panel record, at pp.159-160).
[5] The applicant alleges that he was
born in the region of Panjsher, Afghanistan, in 1973. In 1980 his family moved
to Kabul in the wake of the Soviet invasion. At some point the applicant
returned to the Panjsher region to avoid being drafted. In 1991, he went to
Iran and returned to Afghanistan in 1993, after having heard some bad news concerning
his family, who had remained there. The applicant found work as a mechanic and
resettled in Kabul.
[6] The Taliban took power in
Afghanistan in 1996. One day, the applicant’s brother, who was listening to the
radio on the roof of the house, was spotted by some armed Taliban and then was
allegedly stabbed to death. Following this tragedy, the applicant stayed two
more weeks in Kabul and then fled to the home of his aunt. From there, he
escaped to Pakistan where he remained until his departure for Moscow in 1998.
After spending a year in Russia, he sought asylum in the United Kingdom (U.K.)
and stayed there until his deportation to Afghanistan in July 2003.
[7] Upon his arrival in Kabul, the
applicant returned to the Panjsher region. He alleges that he was arrested
there owing to his perceived membership in the Hezb-e-islami party, to which
his father belonged. The applicant denied membership in this party but was not
believed and was arrested and beaten by the authorities. He then managed to
escape with the assistance of one of the prison guards. The applicant then fled
to Pakistan, went through the United Arab Emirates and Italy, and on January
16, 2004 arrived in Canada where he claimed asylum upon arrival.
IV. Analysis
A. Credibility
[8] The RPD found that the applicant
was not credible for the following reasons:
- The applicant gave contradictory versions as to why he
had been expelled from the U.K.;
- The applicant said he feared returning to the region of
Panjsher, but had gone back there when he returned to Afghanistan;
- The applicant said he previously had a copy of the
arrest warrant issued against him in 2003 but claimed to have lost it;
- The immigration documents disclose that the applicant
told the immigration officer that his permanent residence was in Pakistan but
said at the hearing that this was the first time he had heard of this when the
RPD asked some questions in this regard;
- The applicant was alleged to have given contradictory
versions as to why he had been arrested in Afghanistan.
The RPD questioned the applicant at the
hearing on each of these points but rejected his explanations.
[9] The standard of review applicable
to the RPD’s findings on a refugee claimant’s credibility is that of the
patently unreasonable decision when questions of fact are at issue (Thavarathinam
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1469, [2003]
F.C.J. No. 1866 (F.C.A.), at para. 10; Aguebor v. Canada (Minister of
Citizenship and Immigration), [1993] F.C.J. No. 732 (F.C.A.), at para. 4).
Each of the factual findings on which the RPD relied will be discussed.
(1) Reasons for
applicant’s expulsion
[10] The circumstances and considerations
that led to the applicant’s expulsion from the U.K. are unclear. He wrote in
his account, attached to his PIF, that he was deported because his lawyer had
not informed him of the date of his scheduled interview, and he had thus failed
to report for this interview. In the same document, the applicant stated that
his file had been lost and the authorities had closed it (tribunal record, at
p.30).
[11] At a hearing to review his
detention, the applicant provided a lengthy and confused version of the legal
proceedings in which he had been involved in the U.K. (tribunal record, at
pp.60 et seq.). I understand from this that the applicant repeats the
version given in his PIF, but that after failing to appear at his interview he
was entitled to a hearing at the end of which the decision‑maker granted
him an exceptional four-year stay of deportation. The applicant then commenced
a proceeding in the High Court but did not have an opportunity to make
submissions because the British immigration authorities had misplaced his file.
He was then called to the Court, where he was informed that he would soon be deported.
The applicant was detained and, notwithstanding his efforts to avoid being
deported, he alleges that the British courts continued to send him letters
telling him that he did not have any right of appeal.
[12] The RPD noted that the letter of the
British authorities dated June 17, 2003 (tribunal record, at p.80) contains the
following facts. This letter indicates that the applicant requested asylum but
that his claim was dismissed on December 22, 2000. On appeal, the applicant was
successful, on April 18, 2002. The Secretary of State is said to then have
obtained leave to appeal, on March 28, 2003. The letter dated June 17, 2003
states that the applicant was, at that date, awaiting a decision in connection
with his application for judicial review.
[13] In my opinion, the RPD failed to
explain why the versions given by the applicant are mutually incompatible or
incompatible with the letter of June 17, 2003. It seems to me that the
different versions are, or at least can be, reconcilable. Moreover, I think it
must be taken into consideration that the applicant is not a lawyer and has a
limited education. He does not necessarily have a clear understanding of his
experience in the meanderings of the British judicial system. Finally, the
letter of June 17, 2003 describes the procedural steps of the refugee claim,
while the applicant’s story describes the reasons why the applicant believes,
rightly or wrongly, that he was deported. It is normal that these reasons are
not found in the letter of June 17, and conversely, it seems normal to me,
from the standpoint of a litigant, that he not be able to describe in legal
language the judicial process he has been involved in. I note, incidentally,
that the two letters from the applicant’s counsel, dated April 1, 2003, which
were not the subject of comments by the RPD, explain somewhat more clearly the
applicant’s legal situation in England. These letters do not contradict the
letter of June 17, 2003.
[14] The RPD’s conclusion, that the
applicant was seriously contradicting himself and that the explanation given
“... seriously undermines his credibility” appears to me to be unfounded on the
facts, erroneous and exaggerated. That conclusion, in itself, seems to me to be
patently unreasonable. This was the first determination made in the framework
of the RPD’s analysis. Let us look at the other components of the analysis to
see if this determination vitiated the RPD’s decision.
(2) The applicant’s
return to Afghanistan and the grounds for his arrest
[15] The RPD found that the applicant was
not credible because he had adopted behaviour that was incompatible with that
of a person fearing persecution. In particular, the RPD writes:
The claimant was deported to Kabul, the
capital of Afghanistan, on July 23, 2003.
The claimant said that he was afraid of
being killed in Panjsher, the city where he was living when he fled in 1998,
because the authorities thought his father was working with the Taliban.
However, when he returned to Afghanistan, he
voluntarily left Kabul for Panjsher, even though he had been arrested there
before.
[16] This short extract from the RPD
decision contains the following three significant errors of fact:
- The applicant did not flee the city of Panjsher in 1998.
In fact, he left Kabul, and not Panjsher, following the alleged murder of his
brother, which occurred in 1996 and not 1998;
- The applicant alleges that he left Afghanistan following
the murder of his brother, and not because the authorities thought his father
was working with the Taliban;
- The applicant does not allege that he had previously
been arrested in Panjsher; in fact, it is clear from the record that he was
arrested for the first time when he returned to Afghanistan, in 2003.
[17] It is true that these errors of fact
make this conclusion of the RPD less persuasive. However, it must be said that
the applicant himself helped to further the confusion in this regard, since he
did give versions that were contradictory, or at least hard to reconcile, as to
the following elements:
- the reasons for his
arrest;
- the reasons for his
fear of persecution; and
- the place of flight.
[18] First, as to the reasons for his
arrest in 2003, the applicant gave fluctuating explanations. In his PIF, he
stated that he was arrested as a result of ongoing ethnic, political and tribal
conflicts in his country and because he had been charged with belonging to, and
working for, the Hezb-e-islami party (tribunal record, at p.30). In the
“Background Information” form, some new facts seem to appear. The applicant
alleges therein that members of the Islamic Society Party occupied his house,
and that he was arrested because he ordered them to leave the premises
(tribunal record, at p.159). I think the errors were caused in part by the
applicant’s evidence and oral testimony and that, overall, this evidence does
not irremediably vitiate the decision. However, the errors must be considered
in the assessment of the decision as a whole, which we will do later.
[19] As to the grounds for his fear of
persecution, the applicant stated in his PIF that his father was a member of
the Hezb-e-islami party and that he was afraid that the Taliban would persecute
him for that reason (tribunal record, at p.29). However, the notes of the
immigration officer indicate that he stated in January 2004 that the
authorities (the applicant identifies [translation] “Defence Minister
Fahim, the police, the army (Garnezoun)”) thought [translation] “that his father was still working with the
Taliban, Al-Qaeda and the Hasbi Ilslami” (tribunal record, at p.174). It seems
curious, to say the least, that on the one hand the applicant fears being
persecuted because of his father’s perceived membership in Al-Qaeda while, on
the other, the persecuting agents are the Taliban.
[20] Finally, the applicant
contradicted himself concerning the place of his flight. In the “Background
Information” form (tribunal record, at p.159), he stated that he fled to Iran,
while in his PIF (tribunal record, at p.30) he said he fled to Pakistan.
[21] In this context,
the RPD’s errors of fact seem to me to be more understandable, since the
applicant was consistently confused in his explanations concerning his flight
following the death of his brother. However, the fact remains that it was still
not patently unreasonable to find that the applicant’s conduct was incompatible
with that of a person who fears being persecuted.
(3) Loss
of the arrest warrant
[22] The RPD thought
that the applicant was not credible concerning the reasons why he lost the
arrest warrant against him. At the hearing, the applicant did not challenge
this finding. Through his counsel, the Minister emphasized the fact that this
finding was warranted. It is therefore well founded.
(4) Applicant’s
permanent residence
[23] In its decision,
the RPD based its finding on the applicant’s credibility on the fact that the
immigration officer’s notes said that the applicant told the officer that he
had his permanent residence in Pakistan (tribunal record, at p.178), and that
the applicant stated in his oral testimony that this was the first time he
heard of that (tribunal record, at pp.249-252). I note as well that a document
of the applicant (at p.172 of the tribunal record) stated that the applicant’s
wife and two children were in Pakistan and that their status was unknown. The
RPD stated that it preferred the version of the immigration officer to that of
the applicant because of the applicant’s lack of credibility. The RPD adopted
circular reasoning in this regard: it said the applicant’s credibility was
suspect because he contradicted the notes of the immigration officer, whose
version ought to be adopted owing to the applicant’s lack of credibility. In my
opinion, that is patently unreasonable, since the reasons given by the RPD to
find that the applicant was lacking in credibility were insufficient.
(5) Overall
assessment of the evidence on the applicant’s credibility
[24] It is not in
every case that errors of fact must result in the case being referred back to
the RPD. However, a number of errors, taken together, may lead to this result
even if, considered in isolation, each of the errors of fact would not warrant
judicial review (Salamat v. Canada (Immigration
Appeal Board), [1989] F.C.J. No. 213 (F.C.A.); Horvath v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 1532, at para.
7 (F.C.)). In Zhuo v. Canada (Minister of Citizenship and Immigration),
2005 FC 1271 (F.C.), Phelan J. writes :
¶ 7 . . . A failure to show how
the conclusion is reached, a significant misappreciation of the facts or the
cumulative weight of questionable findings will reach that level. . . .
. . .
¶ 21 While any one of the RPD’s
findings might have been sustained as unreasonable but not patently
unreasonable, some are so clearly at odds with the evidence and the very weight
of so many unreasonable/unexplained or unexplainable findings is so telling,
the Court has concluded that the RPD’s decision is patently unreasonable.
¶ 22 Therefore, the RPD’s decision
will be quashed and the matter remitted to the Board to be heard by a
differently constituted panel.
However, the errors, taken
together, must be important enough to affect the RPD’s central findings: they
cannot involve peripheral questions of fact. In Usta v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1525, at para. 17, Phelan J. writes:
While the Applicant relies on a number of
errors in the Board’s decision such as confusion over dates, number of
incidents and some explanations proffered, none of these go to the core of the
Board’s decision. Nor do any of the errors (to the extent that they exist)
constitute a denial of natural justice.
[25] In my opinion,
the RPD’s finding as to the applicant’s credibility concerning the judicial
proceedings in England and his permanent residence in Pakistan are based on
unconvincing factors and do not reflect the evidence as a whole. Furthermore,
as noted previously, certain errors of fact were made and I am of the opinion
that the RPD’s decision clearly indicates that it did not take into account the
evidence as a whole and misapprehended the facts of the case.
[26] The only
relatively convincing factor cited by the RPD to justify its view of the
applicant’s lack of credibility is the evidence about the applicant’s
contradictory versions concerning the reasons for his arrest. However, the
RPD’s decision did not clearly explain, by reference to the evidence, the
reasons why the different versions of the applicant are incompatible and why
these inconsistencies deprived the applicant of his credibility. Was it because
the applicant added some facts to his story? Was it because he was unable to
clearly identify the persecuting agents?
[27] When I add, in
this context, that the letters from the applicant’s British lawyer were not
mentioned (tribunal record, at pp.126-127), I have no alternative but to
conclude that the decision is patently unreasonable because the RPD failed to
take into account the record as a whole and was to a large degree incorrectly
justified. The failure to refer to certain evidence is not always fatal, but in
this case it is an element that further undermines the persuasiveness of the
decision.
[28] I therefore
answer the first question in the affirmative, given the errors of fact and the
deficiencies in the RPD’s analysis.
B. Lack of
credible basis
[29] In theory, when
the RPD states in its decision that there is no credible basis for a refugee
claim, pursuant to subsection 107(2) of the IRPA, it follows that the
application for leave for judicial review does not result in an automatic stay
of the removal order (subsection 231(2) of the Immigration and Refugee
Protection Regulations, SOR/2002-227). In this case, where the RPD’s
decision is clearly wrong and insufficiently justified, the finding as to the
lack of a credible basis cannot be upheld. I therefore answer the second
question in the affirmative.
[30] For these
reasons, the application for judicial review is allowed and the matter is
referred back to the RPD for redetermination by a differently constituted
panel.
[31] The parties were
invited to suggest a question for certification but they declined to do so.
JUDGMENT
THE COURT ORDERS:
- The application for judicial review
is allowed;
- The matter is referred back to the
RPD for redetermination by a differently constituted panel; and
- No question will be certified.
“Simon Noël”
Certified true translation
François Brunet, LLB, BCL
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