Date: 20061013
Docket: IMM-6892-05
Citation: 2006 FC 1224
Ottawa, Ontario, October 13,
2006
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
SOLIAMAN SCHERZAD
ZARIFA SCHERZAD
NEILOFAR SCHERZAD
HASSAN SCHERZAD
Applicants
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is an application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) rendered October 14,
2005, wherein the applicants – the principal applicant, his wife, his mother
and his son – were found not to be “Convention refugees” or “persons in need of
protection” pursuant to sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act).
[2]
The
principal applicant and his mother are citizens of Afghanistan. They are
Tajik by ethnicity and Shia Muslims by religion. The principal applicant’s wife
was born in Tajikistan, in the
former USSR. According
to the principal applicant’s Personal Information Form (PIF), the principal
applicant, his wife and his mother fled to Germany in 1999.
Their refugee claims were rejected, but they were granted temporary residence.
Their son was born in Germany in 2003 but is a citizen of Afghanistan. Fearing
that the German government would remove them, they left for Canada in 2005 and
claimed refugee status. Although the principle applicant’s wife claimed to be a
stateless person, she was granted an Afghan passport two days before the
hearing before the Board.
[3]
The
applicants allege a fear of persecution by reason of their religion,
nationality and membership in a particular social group. They also claim to be
persons in need of protection from the danger of torture, risk of life, or
cruel and unusual treatment or punishment should they return to Afghanistan.
[4]
In
its decision, the Board was satisfied that Shia Muslims would not face
persecution in Afghanistan today. It noted that under the new
constitution, Shias are free to participate in public life. It also did not find
that the principal applicant would face persecution by reason that he was not a
devout Muslim.
[5]
The
principal applicant had also alleged that, as his wife’s mother tongue was
Russian, she would be perceived as Russian in Afghanistan and that
they would face persecution on this basis. The Board rejected this ground, as
there was no independent documentary evidence to support his claim that
Russians faced persecution in Afghanistan.
[6]
The
Board also had credibility concerns with respect to the principal applicant,
who had further alleged that he and his wife would be persecuted by a former
Taliban leader, who was now one of the heads of security in Herat. It found
several implausibilities in his allegations and concluded that the principal
applicant had manufactured this story for the purposes of his claim.
[7]
The
Board also examined the female applicants’ additional grounds of persecution
because they are women, and in the case of the principal applicant’s mother,
because she is an older woman. The Board noted that the principal applicant’s
wife had attended school in Germany and in Canada and that she
wanted to become a pharmacist. Although the Board acknowledged that there would
be less opportunity for the principal applicant’s wife to pursue higher education
in Afghanistan, it was of
the opinion that she would be able to pursue her studies online through a
long-distance education program. Furthermore, the Board noted that the
government of Afghanistan has taken
several steps to ensure equal rights for women. It was satisfied that both
female applicants would not be subjected to danger, as they would return to Afghanistan accompanied
by the male applicants. It concluded that the principal applicant’s wife would
not be forced to wear a burqua. It also did not find that the principal
applicant’s mother would face a serious possibility of persecution in Afghanistan by reason of
her age.
[8]
The
Court will only intervene where the Board’s findings of fact are patently
unreasonable. That being said, the Board’s determination of what constitutes
persecution involves a mixed question of fact and law, and is reviewable on a
standard of reasonableness simpliciter (Sagharichi v. Canada
(Minister of Employment and Immigration) (F.C.A.) (1993), 182 N.R. 398 at
para. 3 (F.C.A.); Koken v. Canada (Minister of Citizenship and
Immigration), 2005 FC 882 at para. 15).
[9]
The
present application should be dismissed as I am unable to find any reviewable
error in the impugned decision.
[10]
The
applicants argue that the Board ignored documentary evidence that supported the
applicants’ claims. In particular, it failed to consider documentation
indicating that conversion from Islam is punishable by death under Sharia law
and that Shias have historically faced discrimination from the majority Sunni
population in Afghanistan. It also
ignored documentary evidence indicating that women are still subject to human
rights abuses. Consequently, the Board erred when it found the principal
applicant and the female applicants would not face persecution and that their
fears constituted “pure speculation”.
[11]
The
Board is entitled to decide what weight to give to the evidence (Zvonov v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 1089 (F.C.T.D.) (QL).
Accordingly, the Court will not intervene, unless this power is unreasonably
exercised. In my view, the Board’s findings were open to it based on the
totality of the evidence. The Board is presumed to have weighed and considered
all the evidence before it and, in this case, did not have to refer to all the
documentary evidence in its reasons (Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL); Hassan
v. Canada (Minister of Employment and Immigration) (1992), 147 N.R.317). There
is no indication in this case that the Board overlooked relevant evidence or
made a selective reading of the documentary evidence.
[12]
The
Board found, on a balance of probabilities, that Shias would not face
persecution in Afghanistan today. There was evidence to support this
finding. I note that in its reasons, the Board refers to the more recent British
Home Office Country Assessment Report, dated April 2005, while the applicants
refer to the U.S. Department of State International Religions Freedom Report
2004 in their memorandum. Furthermore, the Board considered the principal
applicant’s testimony to the effect that he would be persecuted on the basis
that he was not a devout Muslim. The Board did not find any documentary
evidence to support this claim. It is also evident from its reasons that the
Board considered the documentary evidence that indicated that women are still
subject to human rights abuses in Afghanistan. Moreover, it found
that the female applicants would not be subject to the same perils as
unaccompanied women. It was also satisfied that Afghanistan was making
efforts to improve the situation of women. In my view, these conclusions were reasonably
open to the Board and are not patently unreasonable.
[13]
The
applicants further submit that the Board erred “in characterizing the female
claimant’s fears as concerns of discrimination rather than fears of
persecution”. In particular, it argues that the requirement that women wear a
burqua, as well as the limited career and educational opportunities offered to
women in Afghanistan constitute
persecution.
[14]
In
Sagharichi v. Canada (Minister of Employment
and Immigration) (F.C.A.) (1993), 182 N.R. 398, the Federal Court of
Appeal addressed the difference between discrimination and persecution:
It is true that the dividing line between
persecution and discrimination or harassment is difficult to establish, the
more so since, in the refugee law context, it has been found that
discrimination may very well be seen as amounting to persecution. It is true
also that the identification of persecution behind incidents of discrimination
or harassment is not purely a question of fact but a mixed question of law and
fact, legal concepts being involved. It remains, however, that, in all cases,
it is for the Board to draw the conclusion in a particular factual context by
proceeding with a careful analysis of the evidence adduced and a proper
balancing of the various elements contained therein, and the intervention of
this Court is not warranted unless the conclusion reached appears to be
capricious or unreasonable.
[15]
In
Anguelov v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 856, the Court stated:
The distinction between discrimination
and persecution or harassment is slim. However, what is relevant is the fact
that the applicant does not face the threat of persecution personally and
therefore, is not a Convention refugee.
[16]
In
the case at bar, it is apparent that the Board examined the totality of the evidence.
The Board concluded that the female applicants would not be personally subjected
to persecution in Afghanistan. It also found that the principal applicant’s
wife would not be forced to wear a burqua. It recognized that she would have
less opportunity for higher education, but would still be able to pursue her
studies online. In my view, these findings were neither capricious nor patently
unreasonable. In the particular circumstances of this case, the Board did not
err in concluding that these elements did not amount to persecution. (I also note
that it never used the word “discrimination” with respect to the female
applicants’ claims.)
[17]
For
the above reasons, the application is dismissed. No question of general
importance has been raised by counsel.
ORDER
THIS COURT ORDERS that
- The application for
judicial review is dismissed.
- No question of
general importance is certified.
“Luc Martineau”
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