Date: 20121127
Docket: IMM-3586-12
Citation: 2012 FC 1373
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
November 27, 2012
PRESENT: The Honourable Madam
Justice Gleason
BETWEEN:
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SLEIMAN KAZAN
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001 c 27 [IRPA] of a decision by the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the panel),
dated March 20, 2012, regarding the applicant, Mr. Kazan. The panel
determined that the applicant was neither a Convention refugee nor a person in
need of protection within the meaning of sections 96 and 97 of the IRPA.
[2]
The
panel refused Mr. Kazan’s application on the basis that his allegations
were not credible. In this application for judicial review, the applicant
submits that the panel’s finding to this effect is unreasonable. For the
reasons that follow, I disagree, and this application for judicial review is
therefore dismissed.
Background
[3]
The
applicant is a citizen of Lebanon and an Orthodox Christian. He claims to have
been in an intimate relationship with Farial Yatema, a Shia Muslim woman. The
applicant alleges that their relationship became serious in September 2008.
[4]
On
July 29, 2009, the applicant arrived in Canada with a temporary resident
visa to attend the baptism of a nephew. The baptism was initially set for
August 8, 2009, but was postponed until March 2010 because the
child’s mother was suffering from anaemia.
[5]
The
applicant claims to have received a telephone call from Ms. Yatema on
September 1, 2009, during which he learned that she was four months pregnant.
The applicant alleges that he advised Ms. Yatema to seek refuge in
southern Lebanon, which she did, because they feared the anger of certain
members of the Yatema family who had ties to the Hezbollah and would not have
accepted the fact that Ms. Yatema had been in a relationship with a
Christian man.
[6]
On
September 15, 2009, Ms. Yatema was allegedly assassinated by her
brother, a police officer and member of the Hezbollah, in an honour killing. The assassination was supposedly
covered by the Lebanese media. The applicant claims to have been informed of
the murder by a friend who saw the televised report. In his Personal
Information Form [PIF], the applicant alleged that after Ms. Yatema’s
death, her family asked his neighbours and a cousin about him. The applicant
claims that members of the Yatema family are still looking for him.
[7]
On
June 10, 2010, the applicant claimed refugee protection in Canada. He
claims to be a Convention refugee under section 96 of the IRPA on the grounds that he fears persecution
by the Yatema family because of his religious affiliation. He also claims to be
a person in need of protection under subsection 97(1) of the IRPA because
returning to Lebanon would expose him to a danger of torture, a risk to his
life or a risk of cruel and unusual treatment or punishment at the hands of the
Yatema family.
[8]
In
its decision, the panel noted that the applicant had adduced no evidence corroborating
his version of the facts. The panel found that the applicant had established neither
a well-founded fear under section 96 of the IRPA nor the existence of a
serious possibility that he would be persecuted or face the type of hardship
described in section 97 of the IRPA. The panel determined that the
applicant’s allegations were not credible on the grounds that there were three
weaknesses in his evidence.
[9]
First,
the panel questioned the applicant about the televised report on the murder of
Ms. Yatema. The applicant stated that he had attempted to obtain a copy of
the report in question through his brother. However, when asked whether his
brother had indeed obtained a copy, the applicant replied that he did not know,
as his brother was in Beirut and he was in Canada. The panel did not accept
this explanation, as the applicant had stated that he was in contact with his
brother on a weekly basis, and it concluded that it would have been reasonable
for the applicant to have been aware of his brother’s actions.
[10]
Second,
in his testimony before the panel, the applicant stated that the Yatema family
had asked his neighbours about him. However, the panel noted that in his PIF,
the applicant had written that the Yatema family had only spoken with his
cousin. When questioned about this, the applicant explained that, in his
testimony, he had used an Arabic word referring to [translation] “the people close to one’s family”, which
covers both [translation]
“neighbours” and [translation]
“cousins”. However, the interpreter informed the panel that the word the
applicant had used was [translation]
“neighbour” and that the Arabic language had specific words for [translation] “cousin”, as well as words
distinguishing between maternal and paternal cousins. The applicant then added
that he did not know why he had not mentioned his cousins and that it was
merely a language issue. The panel did not accept these explanations and
concluded that the applicant’s credibility was undermined by these
inconsistencies.
[11]
Third,
the panel drew a negative inference from the fact that the applicant had no
evidence to corroborate Ms. Yatema’s existence, her assassination or their
intimate relationship. Given that, upon his arrival in Canada in July 2009, the
applicant was allegedly so in love with Ms. Yatema that he intended to
marry her, the panel found that it would have been reasonable to expect the
applicant to have some kind of souvenir from Ms. Yatema, such as a
photograph, letter or note, that he could even have [translation] “secretly carried on his person”.
Arguments of the parties
[12]
The
applicant submits that the panel’s decision is unreasonable because its
conclusions with respect to the three weaknesses in his evidence are utterly
without merit. In particular, he alleges that his lack of awareness of the
precise measures taken by his brother to attempt to obtain a copy of the televised
report is irrelevant. He also argues that the panel did not properly summarize
his testimony with respect to his own efforts with the assistance of his
counsel to obtain evidence corroborating Ms. Yatema’s assassination. He
submits that it is not always possible to corroborate every allegation in the
context of a claim for refugee protection and that this is not in itself
evidence undermining the credibility of his allegations.
[13]
Second,
he submits that the difference between the words [translation]”cousin” and [translation]
“neighbour” is not a major contradiction, but rather a minor language issue
that should not be relied on to justify the refusal of his claim for refugee
protection. He adds that in his testimony he had referred to those [translation] “close” to his family, and
that the Arabic word he used includes even distant cousins.
[14]
Finally,
he argues that [translation] “the
panel is not better placed than he is to decide what is reasonable or not in
affairs of the heart” and that the panel had no reason to draw a negative
inference from the fact that he had not kept a souvenir of Ms. Yatema.
[15]
The
respondent submits, first of all, that the applicant’s affidavit in support of
his application for leave is not compliant with the Federal Courts Rules,
SOR/98-106 [Rules], because it is in French and does not contain the jurat of a
translator as required by subsection 80(2.1) of the Rules. The applicant
had stated in his PIF that he required the services of a Lebanese Arabic
interpreter. The respondent submits that it is therefore reasonable to believe
that the applicant does not understand French well and that his affidavit
should have been accompanied by the jurat of a translator, adding that pursuant
to paragraph 10(2)(d) of the Federal Courts Immigration and
Refugee Protection Rules, SOR/93-22, an affidavit filed in support of an
application for leave is an integral part thereof. Therefore, the respondent is
of the view that the applicant’s affidavit should be rejected by this Court,
or, in the alternative, that it should be assigned no probative value.
[16]
With
respect to the reasonableness of the panel’s decision, the respondent argues
that the standard of reasonableness requires that this Court show considerable
deference in reviewing findings relating to the applicant’s credibility, adding
that the panel’s decision in this case must be upheld as justifiable given the
complete lack of evidence corroborating the applicant’s allegations. The
respondent submits that the applicant’s arguments are not sufficient to justify
this Court’s intervention and that the applicant’s mere disagreement with the
decision does not constitute grounds for review (Reis v The Minister of
Citizenship and Immigration, 2012 FC 179 at paragraph 48; Schut v The
Attorney General, 2003 FC 1323 at paragraph 46).
[17]
With
respect to the three weaknesses identified in the applicant’s evidence, the
respondent submits that the panel’s findings were reasonable. It was open to
the panel to draw a negative inference from the fact that the applicant was
unaware of his brother’s actions, given the absence of evidence corroborating
his allegations and his admission that he had been communicating with his
brother on a weekly basis. In the circumstances, it is inconceivable that the
applicant would have failed to question him about such an important element of
his claim for refugee protection.
[18]
Similarly,
the respondent submits that the negative inference drawn by the panel regarding
the lack of a souvenir of Ms. Yatema is reasonable because, when he left
for Canada, the applicant was unaware of Ms. Yatema’s pregnancy and faced
no risk on Canadian soil. This inference is therefore grounded in the evidence
before the panel. Finally, with respect to the confusion between the Arabic
words for [translation]
“neighbour” and [translation]
“cousin”, the respondent acknowledges that the distinction is somewhat semantic
but notes that this point is not central to the panel’s decision.
Analysis
[19]
First,
regarding the non-compliance of the applicant’s affidavit on account of the
missing jurat of translation, I adopt the words of my colleague
Justice Snider: “I would allow the application to proceed in spite of the
flawed Affidavit of the Applicant but would dismiss this application on its
merits” (Liu v The Minister of Citizenship and Immigration, 2003 FCT 375
at paragraph 7).
[20]
The
sole issue is whether the panel’s finding with respect to the applicant’s
credibility is reasonable. It is well established that questions relating to
credibility are reviewed on a standard of reasonableness (Cervenakova v Canada
(Minister of Citizenship and Immigration), 2012 FC 525; Pathmanathan v Canada
(Minister of Citizenship and Immigration), 2012 FC 519; Aguebor v Canada
(Minister of Employment and Immigration), [1993] FCJ no 732 (QL), 160
NR 315 (FCA) [Aguebor]; Elmi v Canada (Minister of Citizenship and Immigration),
2008 FC 773; Wu v Canada (Minister of Citizenship and Immigration), 2009
FC 929).
[21]
As
the respondent has pointed out, this Court must show considerable deference in
reviewing a panel’s findings with respect to credibility (Rahal v Canada (Minister
of Citizenship and Immigration), 2012 FC 319 at paragraph 22 [Rahal];
Singh v Canada (Minister of Citizenship and Immigration), 2006 FC 565 at
paragraph 11). It is not open to this Court to reassess the evidence
that was before the panel (Zrig v Canada (Minister of Citizenship and Immigration),
2003 FCA 178 at paragraph 42).
[22]
In
this case, I am of the view that it all comes down to a lack of evidence. Under
section 96 of the IRPA, the applicant was required to show that he had a
well-founded fear of persecution, which meant establishing on a balance of
probabilities that he had both subjective and objective fear and that no state
protection was available to him (Rajudeen v Canada (Minister of Employment
and Immigration), [1984]
FCJ no 601 (QL); Chan v Canada (Minister of Citizenship
and Immigration), [1995] 3
SCR 593). Under section 97 of the IRPA, the applicant had to
demonstrate that he faced a serious risk of torture, a threat to his life, or a
risk of cruel and unusual treatment or punishment. The applicant has failed to
satisfy any of these requirements. Furthermore, the applicant has not submitted
any arguments that persuade me that the panel’s decision is unreasonable.
[23]
The
applicant’s first argument involves what the panel considered his incomplete
response to the question of what his brother had done to obtain a copy of the media
report of the murder. The panel wrote that it [translation]
“would have been reasonable for the claimant to know the details about what his
brother had done to obtain a copy of the media report on the honour killing”
given that they were in contact with each other on a weekly basis.
[24]
The
relevant section of the hearing transcripts reads as follows:
[translation]
Q: . . . What has your brother done to try to obtain a
copy of the media report, sir?
A: I asked him, I asked him and I don’t know what he did, because he is
over in Beirut and that’s a question that one can’t address directly like that,
it is difficult to speak directly. So I don’t know what he has done.
Q: What
do you mean, difficult to speak directly?
A: Where can he, I mean where can he go to ask questions and make
inquiries about the report in order to get it? He doesn’t have connections,
important connections in order to be able to get it.
Q: OK. But I am asking you what he did between you and your brother, if
you discussed it, you say that you don’t know what he did because it is
difficult to speak with him directly.
A: He can’t just ask for things like that. With whom could he talk about
that? He was not able to get it.
Q: OK. But I am asking you what steps he took to try to obtain it, and you
say that you do not know. And I am asking you why you do not know the details
of what he did to try to find this report, given that it is critical to your claim
for refugee protection.
A: When I spoke with him, I told him anything you have as evidence regarding
that situation, but I do not want this to put you at risk, because you are my
brother. If you are able to get anything, please, send it to me, give it to me.
[25]
Even
having reviewed the applicant’s full response, it is clear that he does not
know what steps were taken by his brother. I agree with the panel that this is
a crucial element of his refugee claim, and it is not credible that he would
not have questioned his brother on something so important to his claim.
[26]
As
for the confusion between the words [translation]
“neighbour” and [translation]
“cousin”, I find that this was not central to the panel’s decision and that it
reasonably concluded based on the evidence that this was not merely a language
issue. In response to question 31 on his PIF, the applicant wrote the
following: [translation] “A few
days later, members of her family came to ask about me. First they spoke with
my cousin and then with my neighbours.”
[27]
At
the hearing before the panel, the applicant denied any involvement of his [translation] “cousins” and even stated:
[translation] “my cousins do not live
near me. It was the people who live next door . . . the
cousins do not live near us, it is just close family friends living next door to
us, but not the cousins”.
[28]
According
to Kengkarasa v Canada (Minister of Citizenship and Immigration), 2007 FC
714 at paragraph 9, the panel may make adverse findings with respect to an
applicant’s credibility if it identifies contradictions or inconsistencies in
his story or between his story and other evidence (see also Aguebor, above;
Javadi v Canada (Minister of Citizenship and Immigration), 2012 FC 297; Vargas
v Canada (Minister of Citizenship and Immigration), 2012 FC129; Moncada v
Canada (Minister of Citizenship and Immigration), 2012 FC 104). In this
case, it is all the more flagrant in that there is no evidence at all
corroborating the applicant’s allegations.
[29]
As
for the applicant’s argument that [translation]
“the panel is not better placed than he is to decide what is reasonable or not
in affairs of the heart”, I find that there was sufficient evidence before the
panel to enable it to draw several negative inferences and make reasonable
findings on that basis.
[30]
In
short, the panel has special and exclusive expertise in assessing the
credibility of applicants, which is why “this Court should refrain from interfering
with that assessment unless the Board’s assessments are capricious or perverse,
or patently unreasonable” (Kovacs v Canada (Minister of Citizenship and Immigration),
2005 FC 1473 at paragraph 31, citing Aguebor, above). As I found in Rahal,
above, at paragraph 42:
. . . the role of this Court is a very limited one because
the tribunal had the advantage of hearing the witnesses testify, observed their
demeanor and is alive to all the factual nuances and contradictions in the
evidence. Moreover, in many cases, the tribunal has expertise in the subject
matter at issue that the reviewing court lacks. It is therefore much better
placed to make credibility findings, including those related to implausibility.
Also, the efficient administration of justice, which is at the heart of the
notion of deference, requires that review of these sorts of issues be the
exception as opposed to the general rule. . . .
[31]
No
question of general importance was submitted by the parties under section 74 of
the IRPA and none arises in this case.
Conclusion
[32]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT IS
that:
1. This application for judicial
review of the decision dated March 20, 2012, by the Refugee Protection
Division of the Immigration and Refugee Board is dismissed.
2. No question of general
importance is certified.
3. No costs are awarded.
“Mary J.L.
Gleason”
Certified true translation
Francie Gow, BCL, LLB
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