Date:
20120925
Docket:
IMM-2287-12
Citation:
2012 FC 1124
Ottawa, Ontario,
September 25, 2012
PRESENT: The
Honourable Madam Justice Kane
BETWEEN:
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LAMER KHAN, BIBI KHAMIDA,
SAEED LAMIR KHAN, AMIR KHAN
(A.K.A. AMIR LAMIR KHAN)
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
Introduction
[1]
This
proceeding is an application for judicial review of the negative decision of
the Refugee Protection Division of the Immigration and Refugee Board [the Board]
made on February 21, 2012, wherein the Board determined that the applicants
were not Convention Refugees pursuant to Section 96 of the Immigration and
Refugee Protection Act, [IRPA, the Act] nor persons in need of protection
pursuant to Section 97 of the Act.
[2]
The
applicants seek an Order that the Board’s decision be set aside and the matter
be referred back to a differently constituted panel for a re-determination of
the applicants’ refugee claim.
1. Factual Background
[3]
The
applicants, Lamer Khan, his wife, Bibi Khan and two sons, Amir Khan and Saeed
Khan, entered Canada on December 27, 2010 and claimed refugee protection from Afghanistan based on fear of persecution from the Taliban.
[4]
The
principal applicant, Lamer Khan, is an Afghan citizen who fled that country
around 1980 to Pakistan. In Pakistan he married Bibi Khan, also from Afghanistan. In 1988, the principal applicant relocated to the United Arab Emirates [UAE]
with a work visa and a fraudulent Pakistani passport. His wife and children
joined him a few years later, also with fraudulent Pakistani passports. The
fraudulent passports were subsequently renewed over the years because the
family’s information had been entered in the citizenship database in Pakistan. Several more children were born while the family resided in the UAE. As children
of Afghan citizens, they are all Afghan citizens, although they obtained
Pakistani passports. There are now 11 children in the family. Only two of the
children accompanied their father and mother to Canada. The principal applicant
indicated that he had sought visas for all family members but only four were
issued. The remaining children, ranging in age from approximately 10 to 25, are
in the UAE. One of the older sons is married and has three children of his own
and is working in the UAE.
[5]
The
principal applicant was notified in November 2010 that his work permit in the
UAE would not be renewed due to his age. This would result in the family not
being able to remain in the UAE. Faced with the prospect of returning to Pakistan or Afghanistan, the four family members, who are the current applicants, sought refugee
protection in Canada. The applicants’ intention or goal was to be granted
refugee status or found to be persons in need of protection and to then seek
permanent resident status and to ultimately bring the other family members to Canada.
[6]
The
applicants used their Pakistani passports and the visas issued in the UAE to
travel to Canada. At the first interview with immigration officials, however,
they provided false names and indicated that they were smuggled into Canada and had no identification. They further indicated that they were originally from Afghanistan where they had a farm and that in around 2005 some of their children had been sent to Pakistan to be educated and that this resulted in threats from the Taliban to return the family to Afghanistan. Rather than do so, the family fled to Pakistan where they lived until making
arrangements to come to Canada.
[7]
Upon
further inquiries, immigration officers noted that a family of the same
description, with different names, but with the same birthdates, had arrived in
Toronto on December 27, 2010 with Pakistani passports and visas issued in the
UAE. After the immigration officers questioned the applicants about this
similarity, the applicants provided different information which forms the basis
of their claim for refugee status. The account provided at the first interview
on January 6, 2011 and at the second interview on January 11, 2011 is recorded
in detail in the Point of Entry [POE] notes.
[8]
The
information provided by the applicants, set out in each original Personal
Information Form [PIF] in February 2011 and in their amended PIF in December
2011, and which was fully considered by the Board, alleges that while in the
UAE, around 1996, the principal applicant began to receive calls from the
Taliban demanding money. Similar threats were communicated via the principal applicant’s
uncle who remained in Afghanistan, including a letter sent around 2008, (a
scanned copy of which was provided), threatening that the family should return
to Afghanistan and join the jihad or be beheaded.
[9]
The
principal applicant had indicated in his first PIF that he began receiving
threats from the Taliban in 1996. When further questioned about the dates he
began to receive the threats, he indicated that in 1996 he did not receive
threats directly, but was told from other people that the Taliban knew where he
was and did not want him to educate his children. At the hearing before the
Board, he indicated that in around 2006 he began receiving direct demands for
financial support from the Taliban and death threats to the family, claiming
the daughters should be burned because they were educated and the sons were
American agents because they could speak English.
[10]
The
applicants did not advise authorities in the UAE of these threats, offering the
explanation that they continued to feel safe as long as they could remain in
the UAE and that they did not wish to draw attention to the fact that they were
in the UAE with fraudulent Pakistani passports.
[11]
Although
the principal applicant had travelled to the United Kingdom in 2003 and to
Canada in 2006, he offered the explanation that he did not claim refugee protection
at that time because he had status in the UAE and he held the hope that the
Taliban would be defeated in Afghanistan and he could eventually return there
safely.
2. The Decision Under Review
[12]
The
Board found that the claimants are not Convention refugees under Section 96 as
they do not have a well founded fear of persecution in Afghanistan on any of the five Convention grounds. The Panel also found that the claimants
are not persons in need of protection under Section 97 as, on a balance of
probabilities, their removal to Afghanistan would not subject them personally
to a risk to life or to a risk of cruel and unusual treatment or punishment, or
to a danger of torture.
[13]
In
summary, the Board found that the claimants were not credible and, as a result,
there was insufficient credible evidence to support their claim for refugee
protection. The Board clearly stated that it found the claimants untruthful
when they alleged that they were threatened by the Taliban in the UAE.
[14]
The
Board also assessed whether the applicants were persons in need of protection
pursuant to Section 97 and did so without regard to the credibility findings
which resulted in the Board’s negative determination pursuant to Section 96 of
the Act. The Board considered whether the profiles of the applicants would
subject them to harm in Afghanistan. The Panel found that there was “not even a
serious possibility that such would be the case”.
[15]
The
Board noted that they regretted that the negative finding meant that the
applicants’ other family members could not join them in Canada, although, as Afghan citizens, the four applicants would be able to stay in Canada indefinitely since removal is suspended for that country. The Board indicated that
if it had humanitarian and compassionate jurisdiction, it would no doubt have
exercised that discretion but, in the words of the Board, “its hands are tied”.
[16]
It
should also be noted that the Board made findings with respect to the
citizenship of the applicants which the applicants submitted were illogical.
The Board found that the applicants were citizens of Afghanistan by birth and
that since coming to Canada had been issued new Afghan passports. However, the
Board also noted that, based on the information included in the citizenship
database of Pakistan, the applicants were citizens of Pakistan. While such comments appear inconsistent, and the Board clearly acknowledged that
the applicants disagreed with this finding, it clearly stated that the claims
had been decided on the basis of whether the claimants would be at risk in Afghanistan. The findings with respect to citizenship had no bearing on the Board’s
assessment of the claim with respect to Section 96 or 97.
3. Standard of Review
[17]
The
Supreme Court of Canada, in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
at para. 57, held that a standard of review analysis need not be conducted in
every instance. Where the standard of review applicable to the particular
question before the court is well settled by past jurisprudence, the reviewing
court may adopt that standard of review.
[18]
The jurisprudence post-Dunsmuir confirms that the
appropriate standard of review applicable to credibility and plausibility
assessments is that of reasonableness: Saleem v Canada (Minister of
Citizenship and Immigration), 2008 FC 389 at para. 13; Malveda v Canada (Minister of Citizenship and Immigration), 2008 FC 447 at paras. 17-20; Khokhar
v Canada (Minster of Citizenship and Immigration) 2008 FC 449 at paras.
17-20), Lin v. Canada (Minister of Citizenship and Immigration) 2008 FC
1052 at paras. 13-14 [Lin].
[19]
The
Board’s analysis of credibility and plausibility is central to its role as trier
of fact and that the Board’s findings should be given significant deference: Lin at para. 13.
[20]
As
noted by O’Keefe J. in Fatih v Canada (Minister of Citizenship and
Immigration), 2012 FC 857 at para. 65 [Fatih], “ It
is well established that credibility findings demand a high level of judicial
deference and should only be overturned in the clearest of cases (see Khan v
Canada (Minister of Citizenship and Immigration), 2011 FC 1330, [2011] FCJ
No 1633 at paragraph 30). As such, the Court should generally not substitute
its opinion unless it finds that the decision was based on erroneous
findings of fact made in either a perverse or capricious manner or without
regard for the material before it (see Bobic v Canada (Minister of
Citizenship and Immigration), 2004 FC 1488, [2004] FCJ No 1869 at paragraph
3).”
[21]
The role of the court in judicial review where the standard of
reasonableness applies is not to substitute any decision it would have made
but, rather, to determine whether the decision of the Board “falls within ‘a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law’ (Dunsmuir at para. 47). There might
be more than one reasonable outcome. However, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.”: Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12.
4. Analysis
[22]
The
applicants submitted that the credibility findings were not reasonable in that
the Board placed too much emphasis on the initial lie which then influenced its
determinations of credibility with respect to all other matters.
[23]
The
applicants submitted that their explanations for the amendments to the PIF were
not inconsistencies, rather additional information, and that the Board
misapprehended the responses with respect to the letter sent by the Taliban to
the principal applicant’s uncle allegedly in 2008. Although the uncle indicated
he received the letter in 2008, the applicants were not necessarily aware of it
in 2008 and therefore any inferences drawn by the Board about why this letter
was not mentioned in the amended PIF are not appropriate and should not impact
on credibility.
[24]
The
applicants submitted that the Board unreasonably chose to accept some of the
information provided while rejecting other information as not credible. They
submitted that, where credibility is an issue, the Board has a basic obligation
to make a clear and unmistakable finding that the claimant is or is not
credible and give real reasons for its finding. The applicants further
submitted that doubts about the credibility of some or all of the applicants’
testimony do not relieve the Board from the responsibility of determining,
based on all the evidence, whether the applicants are refugees.
[25]
With
respect to the Section 97 claim, the principal applicant emphasised that he
claimed that his family would be at risk if returned to Afghanistan, not that
he would be at personal risk, and that the family would indeed be a displaced
family, given that the children had never lived in Afghanistan, and could be
singled out because they had been well educated (including the daughters) and
spoke English.
[26]
The
applicants also submitted that the Board’s finding that they were not persons
in need of protection was illogical given the Board’s observation that the
applicants would not likely be removed from Canada to Afghanistan due to overall risk.
[27]
The
respondent submitted that the decision of the Board was reasonable. The Board
had the full opportunity to assess the quality of the evidence and the
credibility of the applicants in the written material and at the oral hearing
and concluded, based on several factors, that the applicants were not credible.
[28]
The
respondent noted that the Board outlined its credibility findings in clear and
unmistakable terms and provided many examples of where it found that the
applicants were not credible, including the fraudulently obtained Pakistani
passports, the change in the timeframe with respect to the undocumented
threatening calls from the Taliban from 1996 to 2006, the changing
justifications for not making refugee claims during the past trips to the
United Kingdom and Canada in 2003 and 2006 respectively, the failure to report
the alleged threats to the UAE government even though this government was
itself opposed to the Taliban, the late mention and production of an
unverifiable copy of an alleged threatening letter from the Taliban received by
an uncle in Pakistan around 2008, and the failure to mention allegations
relating to the education of the daughters in the original and amended PIF.
[29]
Based
on the totality of evidence, the respondent submitted that it was reasonable
for the Board to conclude that the applicants had not met the burden of
providing credible evidence
to support their claim for refugee protection
– i.e. that they had been threatened by the Taliban - or providing a reasonable
explanation for the absence of such documents.
[30]
With
respect to the Section 97 claim, the respondent submitted that the Board put
aside the credibility issues and objectively assessed whether the applicants
were persons in need of protection and reasonably concluded they were not.
[31]
In my view, the Board made clear and unmistakable findings with
respect to the credibility of the applicants.
[32]
With respect to the amendments made to the PIF, the jurisprudence
has established that a Board may draw negative credibility inferences where
important events or information is omitted and revealed only later and a
reasonable explanation is not provided for their earlier inclusion: Fatih
at para 66; Adewoyin v Canada (Minister of Citizenship and Immigration),
2004 FC 905, [2004] FCJ No 1112 at para 18; and, Guzun v Canada (Minister of
Citizenship and Immigration), 2011 FC 1324, [2011] FCJ No 1615 at
para 18.
[33]
In this case the Board found that the explanations for the
principal applicant’s failure to indicate why he did not make a refugee claim
in 2003 or 2006, the inconsistencies in the dates and the nature of the
threats, and his very late mention of the threats by the Taliban directed
toward his children, which he only raised at the oral hearing, were not
satisfactory. The Board also found that the explanation offered by the principal
applicant about why he provided a completely fabricated and “systemic lie” upon
entering Canada given his stated desperation to flee to Canada to secure freedom and protection for his family to be “markedly unsatisfactory”. The
principal applicant had indicated that he was advised by persons in the UAE to
provide the false story.
[34]
The
Board is entitled to take into account omissions, differences and
inconsistencies in the PIFs, Point of Entry [POE] notes and the oral testimony
and to draw negative credibility findings: (Lin at para. 17).
[35]
This
Court has stated on several occasions that over reliance on POE notes in
considering a claimant’s credibility may constitute a reviewable error: Cetinkaya
v Canada (Minister of Citizenship and Immigration), 2012 FC 8 at
para. 51; Wu v Canada (Minister of Citizenship and Immigration), 2010 FC
1102 at para. 16. The POE notes are not intended to contain all the details of
the claim. In this case, the Board relied on all the evidence, including the POE
notes, which set out the first account by the applicants and which the board
found to be totally fabricated. While the Board did not base its determination
on the POE notes, the information provided was a consideration for the Board in
assessing credibility which the Board fully acknowledged.
[36]
With
respect to the Section 97 claim, adverse credibility findings, which may be determinative
of a claim pursuant to Section 96, are not necessarily conclusive of the Section
97 claim. The assessment under Section 97 requires the Board to consider
objectively whether the applicants’ removal would subject them personally to a risk
to their life or to cruel and unusual treatment or punishment: Jarada v Canada (Minister of Citizenship and Immigration), 2005 FC 409 at para. 26).
[37]
The
Board engaged in a separate and objective assessment of the Section 97 claim,
without regard to the credibility concerns, and came to its conclusion based on
the information considered that there was not even a reasonable possibility
that the applicants, given their profile, would face a risk of harm from the
Taliban if hypothetically returned to Afghanistan more than any other Afghans
would face.
5. Conclusion
[38]
As
noted above, credibility findings of the Board are to be given a high degree of
deference. It is not the role of the Court to substitute its view of the
outcome.
[39]
The
decision of the Board is reasonable in that it falls within “a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law: Dunsmuir at para. 47. The decision
reached with respect to the Section 96 claim was based on credibility findings
which were justified, transparent and intelligible.
[40]
The
Board made significant findings with respect to credibility which were set out
in the clearest of terms. The Board noted that the various inconsistencies and
omissions on their own may not have led to a finding that the principal applicant was
not credible, but the fact that he had told a “totally fabricated” version of
his story upon first arriving in Canada “was one huge lie which made such a
finding not difficult.” The applicant “chose to make his first significant act
in Canada a systematic lie to the Government of Canada” and his explanation
that he had been advised to do so to improve his chances of remaining in Canada and bringing his remaining family to Canada was “markedly unsatisfactory”.
[41]
The
Board noted that “because the claimant lied about so many things, the Panel
cannot accept that he is telling the truth about the critical issue, that is,
whether he was being threatened by the Taliban in the UAE as he said. He had
very little persuasive corroborative evidence to back up his
claims, but there were many credibility concerns which served to give reason to
doubt his claims. Thus, the Panel simply does not believe the claimant
was threatened as alleged.”
[42]
With
respect to the Section 97 claim, the Board assessed this objectively, without
regard to the credibility concerns, and concluded that there was not even a
reasonable possibility that the applicants, given their profile, would face a
risk of harm from the Taliban if they were returned to Afghanistan, more than the risk of harm faced by other Afghans.
[43]
While
Counsel for the applicant suggested that such a finding is illogical given the
Board’s observation that the applicants would not likely be removed to Afghanistan due to overall risk, the Board’s role was to determine the Section 97 claim,
which it did, based on all the information considered.
[44]
The
Board noted that the documentation reviewed did not indicate that an ability on
the part of the son to speak English would subject him or the family to persecution
by the Taliban. The Board noted that the family would not be perceived as
aligned with the West given that they had lived in the UAE, which was an
Islamic country. Nor would they be perceived as wealthy, despite having lived
in the UAE, because the evidence was that the principal applicant was a truck
driver with a modest income and a large family to support.
[45]
The
Board found that it was hypothetically possible that the Taliban could target
anyone in Afghanistan, but that no persuasive evidence had been adduced that
would show the applicant to be more of a hypothetical target than any other
Afghan. The applicant had not expressed any public opposition to the Taliban.
The Board found that he had not been threatened by the Taliban for refusing to
support them while in the UAE and therefore that the Taliban would not likely
remember his refusal and exact reprisals. While it was hypothetically possible
that his sons could be forced into Madrasas (Islamic schools) or his daughters
could be barred from school, no evidence had been presented that this was
occurring to all or even most Afghan families and there was no evidence that it
was “even a reasonable possibility” for the applicant’s family if they were to
return to Afghanistan.
[46]
The
Board’s determination was based on the claim made by the principal applicant
and his wife and two sons. However, the Board fully appreciated the impact of
its negative decision on the whole family. The Board acknowledged that if the
current applicants were not removed to Afghanistan, which the Board suggested
would be the case regardless of its decision to deny the applicants’ claim for
refugee protection, the family would not be easily reunited and there would be
an impact on the remaining children in the UAE. The Board clearly understood
that its decision would impact all family members – those still in the UAE who
were not applicants and the four current applicants. The Board indicated that
it regretted the outcome and that it did not have humanitarian and compassionate
discretion. It appears that the Board understood the sincere desire and
motivation of the applicants to seek refugee status in Canada, but despite this
understanding the Board could not ignore the several significant credibility
concerns it had which resulted in its findings that there was no credible
evidence to support their claim for refugee protection, nor could the Board
find evidence to support that the applicants would face a risk to their life or
of cruel or unusual punishment if returned to Afghanistan. The Board’s findings
demand a high level of deference and should only be overturned in the clearest
of cases. This is not one of those cases. The Board’s decision falls within a
range of possible outcomes which are defensible in light of the facts and the
law.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is dismissed; and
2.
No
serious question of general importance is certified.
"Catherine M.
Kane"
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