Date: 20090316
Docket: IMM-921-08
Citation: 2009 FC 266
Ottawa, Ontario, March 16,
2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ABDUL GHAFFAR ALAKOZAI,
SEEMA ALAKOZAI,
ABDUL MUMEN ALAKOZAI
by his litigation guardian,
ABDUL GHAFFAR ALAKOZAI
and CANADIAN LUTHERAN
WORLD RELIEF
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to s. 72 (1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of
an immigration officer (Officer) of the Canadian High Commission in Islamabad,
Pakistan (CHC), dated January 15, 2008 (Decision), in which the Officer refused
the Applicants’ application for permanent residence in Canada as not falling
within the Convention Refugee Abroad or the Humanitarian-protected Person
Abroad classes.
BACKGROUND
[2]
The
Applicants are citizens of Afghanistan and part of the Pashtun
ethnic group. The Principal Applicant, Abdul Alakozai, is currently 56 years
old. Seema, the Principal Applicant’s wife is 51 years old and the Principal
Applicant’s son, Abdul Mumen Alakozai is 17 years old. Two other sons of the
Principal Applicant and his wife were killed in Afghanistan on August
17, 2004. They were 25 and 23 years old at the time.
[3]
There
was fighting between the Tajik and Pashtun ethnic groups in Herat where the
Applicants lived. The Applicants fled from Herat to a village
outside Melysebcha after their sons were killed and remained there for almost
one month until they fled from Herat to Kandahar, then to
Kabul and on to Pakistan. The Applicants say they were unable to
retrieve any documents or personal belongings from their house because of the
danger. They were eventually told that their house had been looted.
[4]
The
Applicants escaped from Afghanistan by paying for a truck
to take them to Kandahar, staying there one night and then continuing to Kabul. In Kabul, the
Applicants looked for friends or relatives to assist them but they were unable
to find anyone. They believed that their friends and relatives had moved to
seek refuge elsewhere. The Applicants feared remaining in Pakistan as there was
ongoing mistreatment at the hands of the police and a lack of settlement
opportunities.
[5]
The
Principal Applicant says he was a teacher in Afghanistan. He had
completed six years of primary school and 6 years of secondary school, followed
by two years at a teaching institute in Kabul where he
received his teaching diploma. The Principal Applicant also had some “non-formal”
training as a carpenter. He says he worked as a teacher from March 1973 until
December 1976 at Hayati Primary School in Herat, and from
March, 1977 until June, 1982 at Alawudeen Ghuri School in Herat. From 1982
to 1991 he worked as a carpenter, and then again as a teacher from March 1991
until September 2004 at Alawudeen Ghuri School in Herat.
[6]
The
Applicants applied for a permanent resident visa on May 20, 2005. They applied
as refugees outside of Canada on the basis that their lives were in danger
in Afghanistan. This
application was filed in conjunction with an undertaking to sponsor by a
Sponsorship Agreement Holder pursuant to the private sponsorship program in subsection
13(2) of the Act and Part 8 of the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations). The application included a Letter of Approval from the Canadian
Lutheran World Relief (CLWR) office in Toronto, dated November 30, 2005.
[7]
The
Applicants were interviewed by the Officer at the Canadian visa office in Islamabad on November
22, 2007. In a January 9, 2008 letter, the Officer rejected their application.
DECISION UNDER REVIEW
[8]
The
Officer held that she could not establish the Applicants’ credibility as both the
Principal Applicant and his wife provided conflicting information about their
careers in Afghanistan. The Officer
found that the evidence of the Principal Applicant contradicted both his wife’s
and his own application form. When the Officer asked the Principal Applicant
and his spouse to explain these contradictions they were unwilling or unable to
do so. Consequently, the Officer held that she was not satisfied that the
Applicants were seriously or personally affected by the civil conflict in Afghanistan or that they
met the requirements of the Act. Their application was refused.
ISSUES
[9]
The
Applicants submit the following issues for review:
(a)
Did
the Officer err in law in reaching her Decision with respect to the Applicants’
application for permanent residence in Canada and, in particular, in finding
that the Applicants did not meet the definition of the Convention Refugee
Abroad Class, or the Humanitarian-protected Persons Abroad Class, and in
particular the Country of Asylum Class?
(b)
Did
the Officer err in law in making erroneous findings of fact without regard to
the evidence before her, and was her Decision patently unreasonable or
capricious considering the evidence before her, or did she ignore or misinterpret
evidence before her?
(c)
Did
the Officer err in failing to observe a principle of natural justice,
procedural fairness or other procedures that she was required by law to observe
and did she also demonstrate a reasonable apprehension of bias?
(d)
Such
further and other grounds as the Applicants may advise and this Court permit.
[10]
In
their Reply, the Applicants have also raised several other issues:
(a)
Did
the Officer err in failing to consider the application under both the Country
of Asylum Class and the Convention Refugees Abroad Class?
(b)
Did
the Officer err in failing to consider the application in light of CIC policy
related to gender-related persecution, including the IRB’s Gender Guidelines
for Women Refugee Claimant’s Fearing Gender-Related Persecution?
(c)
Did
the Officer err in failing to duly consider the reasons why the Applicants
feared persecution, and by refusing the claim based on credibility findings
related to peripheral matters (i.e. the answers provided by the Principal
Applicant related to his employment)?
STATUTORY PROVISIONS
[11]
The following
provisions of the Act are applicable in these proceedings:
11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document
required by the regulations. The visa or document may be issued if, following
an examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
16. (1)
A person who makes an application must answer truthfully all questions put to
them for the purpose of the examination and must produce a visa and all
relevant evidence and documents that the officer reasonably requires.
Convention refugee
96. A Convention refugee
is a person who, by reason of a well-founded fear of persecution for reasons
of race, religion, nationality, membership in a particular social group or
political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in need of protection
97. (1) A person in need
of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
16. (1) L’auteur d’une demande au titre de
la présente loi doit répondre véridiquement aux questions qui lui sont posées
lors du contrôle, donner les renseignements et tous éléments de preuve
pertinents et présenter les visa et documents requis.
Définition de
« réfugié »
96. A qualité
de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
[12]
The following
provisions of the Regulations are applicable in these proceedings:
139(1) A permanent
resident visa shall be issued to a foreign national in need of refugee
protection, and their accompanying family members, if following an
examination it is established that
(d) the foreign national is a person in respect of whom there is
no reasonable prospect, within a reasonable period, of a durable solution in
a country other than Canada, namely
(i) voluntary repatriation or resettlement in their country of
nationality or habitual residence, or
(ii) resettlement or an offer of resettlement in another country;
144. The Convention refugees abroad class is prescribed as a
class of persons who may be issued a permanent resident visa on the basis of
the requirements of this Division.
145. A foreign national is a Convention refugee abroad and a
member of the Convention refugees abroad class if the foreign national has
been determined, outside Canada, by an officer to be a Convention refugee.
146. (1) For the purposes of
subsection 12(3) of the Act, a person in similar circumstances to those of a
Convention refugee is a member of one of the following humanitarian-protected
persons abroad classes:
(a) the country of asylum class; or
(b) the source country class.
(2) The country of asylum class and the source country class are
prescribed as classes of persons who may be issued permanent resident visas
on the basis of the requirements of this Division.
147. A foreign national is a member of the country of asylum
class if they have been determined by an officer to be in need of
resettlement because
(a) they are outside all of their countries of nationality and
habitual residence; and
(b) they have been, and continue to be, seriously and personally
affected by civil war, armed conflict or massive violation of human rights in
each of those countries.
148. (1) A foreign national
is a member of the source country class if they have been determined by an
officer to be in need of resettlement because
(a) they are residing in their country of nationality or habitual
residence and that country is a source country within the meaning of
subsection (2) at the time their permanent resident visa application is made
as well as at the time a visa is issued; and
(b) they
(i) are being seriously and personally affected by civil war or armed
conflict in that country,
(ii) have been or are being detained or imprisoned with or without
charges, or subjected to some other form of penal control, as a direct result
of an act committed outside Canada that would, in Canada, be a legitimate
expression of freedom of thought or a legitimate exercise of civil rights
pertaining to dissent or trade union activity, or
(iii) by reason of a well-founded fear of persecution for reasons of
race, religion, nationality, political opinion or membership in a particular
social group, are unable or, by reason of such fear, unwilling to avail
themself of the protection of any of their countries of nationality or
habitual residence.
(2) A source country is a country
(a) where persons are in refugee-like situations as a result of
civil war or armed conflict or because their fundamental human rights are not
respected;
(b) where an officer works or makes routine working visits and is
able to process visa applications without endangering their own safety, the
safety of applicants or the safety of Canadian embassy staff;
(c) where circumstances warrant humanitarian intervention by the
Department in order to implement the overall humanitarian strategies of the
Government of Canada, that intervention being in keeping with the work of the
United Nations High Commissioner for Refugees; and
(d) that is set out in Schedule 2.
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139. (1) Un visa
de résident permanent est délivré à l’étranger qui a besoin de protection et
aux membres de sa famille qui l’accompagnent si, à l’issue d’un contrôle, les
éléments suivants sont établis :
d) aucune possibilité raisonnable de solution durable
n’est, à son égard, réalisable dans un délai raisonnable dans un pays autre
que le Canada, à savoir :
(i) soit le rapatriement volontaire ou la réinstallation
dans le pays dont il a la nationalité ou dans lequel il avait sa résidence
habituelle,
(ii) soit la réinstallation ou une offre de
réinstallation dans un autre pays;
144. La
catégorie des réfugiés au sens de la Convention outre-frontières est une
catégorie réglementaire de personnes qui peuvent obtenir un visa de résident
permanent sur le fondement des exigences prévues à la présente section.
145. Est un réfugié au
sens de la Convention outre-frontières et appartient à la catégorie des
réfugiés au sens de cette convention l’étranger à qui un agent a reconnu la
qualité de réfugié alors qu’il se trouvait hors du Canada.
146. (1) Pour
l’application du paragraphe 12(3) de la Loi, la personne dans une situation
semblable à celle d’un réfugié au sens de la Convention appartient à l’une
des catégories de personnes protégées à titre humanitaire outre-frontières
suivantes :
a) la catégorie de personnes de pays d’accueil;
b) la catégorie de personnes de pays source.
(2) Les catégories de personnes de pays d’accueil et de
personnes de pays source sont des catégories réglementaires de personnes qui
peuvent obtenir un visa de résident permanent sur le fondement des exigences
prévues à la présente section.
147. Appartient à la
catégorie de personnes de pays d’accueil l’étranger considéré par un agent
comme ayant besoin de se réinstaller en raison des circonstances
suivantes :
a) il se trouve hors de tout pays dont il a la nationalité
ou dans lequel il avait sa résidence habituelle;
b) une guerre civile, un conflit armé ou une violation
massive des droits de la personne dans chacun des pays en cause ont eu et
continuent d’avoir des conséquences graves et personnelles pour lui.
148. (1)
Appartient à la catégorie de personnes de pays source l’étranger considéré
par un agent comme ayant besoin de se réinstaller en raison des circonstances
suivantes :
a) d’une part, il réside dans le pays dont il a la
nationalité ou dans lequel il a sa résidence habituelle, lequel est un pays
source au sens du paragraphe (2) au moment de la présentation de la demande
de visa de résident permanent ainsi qu’au moment de la délivrance du visa;
b) d’autre part, selon le cas :
(i) une guerre civile ou un conflit armé dans ce pays ont
des conséquences graves et personnelles pour lui,
(ii) il est détenu ou emprisonné dans ce pays, ou l’a
été, que ce soit ou non au titre d’un acte d’accusation, ou il y fait ou y a
fait périodiquement l’objet de quelque autre forme de répression pénale, en
raison d’actes commis hors du Canada qui seraient considérés, au Canada, comme
une expression légitime de la liberté de pensée ou comme l’exercice légitime
de libertés publiques relatives à des activités syndicales ou à la
dissidence,
(iii) il ne peut, craignant avec raison d’être persécuté
du fait de sa race, de sa religion, de sa nationalité, de ses opinions
politiques ou de son appartenance à un groupe social particulier, ou, du fait
de cette crainte, ne veut se réclamer de la protection de ce pays.
(2) Est un pays source celui qui répond aux critères
suivants :
a) une guerre civile, un conflit armé ou le non-respect
des droits fondamentaux de la personne font en sorte que les personnes qui
s’y trouvent sont dans une situation assimilable à celle de réfugiés au sens
de la Convention;
b) un agent y travaille ou s’y rend régulièrement dans le
cadre de son travail et est en mesure de traiter les demandes de visa sans
compromettre sa sécurité, celle des demandeurs ni celle du personnel de
l’ambassade du Canada;
c) les circonstances justifient une intervention d’ordre
humanitaire de la part du ministère pour mettre en oeuvre les stratégies
humanitaires globales du gouvernement canadien, intervention qui est en
accord avec le travail accompli par le Haut-Commissariat des Nations Unies
pour les réfugiés;
d) il figure à l’annexe 2.
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STANDARD OF REVIEW
[13]
In Dunsmuir v.
New Brunswick, 2008 SCC 9
(Dunsmuir), the Supreme
Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review” Dunsmuir at paragraph 44. Consequently,
the Supreme Court of Canada held that the two reasonableness standards should
be collapsed into a single form of “reasonableness” review.
[14]
The
Applicants submit that the standard of review applicable to a visa officer’s
decision as to whether an applicant comes within the definition of Convention refugee
or Country of Asylum class is reasonableness simpliciter, as it is a question
of mixed law and fact: Krishnapillai v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 302 at paragraphs 5-10.
[15]
The
Respondent submits that a visa officer’s decision should be assessed against
the reasonableness standard set out in Dunsmuir. The only
relevant exception is issues of procedural fairness where correctness applies.
[16]
The
Respondent relies on the case of Azali v. Canada (Minister of Citizenship
and Immigration) 2008 FC 517 which involved a visa officer refusing an
application for permanent residence based upon the Convention Refugee Abroad
Class or the Humanitarian-Protected Persons Abroad Designated Class. The three
issues reviewed in that case were: (1) whether the officer erred in requiring
corroborative evidence as a condition of acceptance of the applications; (2)
whether the officer erred in failing to draw a conclusion as to whether he
accepted the applicants’ explanation for the error in their forms; and (3) whether
the officer erred in failing to confront the applicants with the inconsistency
between their application and their previous applications for temporary
resident visas. It was held that the first two issues were questions of fact
and reviewable on the “deferential standard of reasonableness” while the third
issue was a question of procedural fairness and reviewable on a standard of
correctness.
[17]
The
Respondent submits that the Officer’s Decision in this matter is entitled to deference
under the reasonableness standard, with the exception of procedural fairness,
which should be assessed on the correctness standard.
[18]
In light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to the issue of whether the Applicants were Convention refugees or Humanitarian-protected
persons abroad to be reasonableness. When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the existence of
justification, transparency and intelligibility within the decision-making
process [and also with] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at
para. 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
[19]
In
relation to the credibility of the Applicants, Aguebor v. Canada
(Minister of Citizenship and Immigration), [1993] F.C.J. No. 732
(F.C.A.) (Aguebor) at paragraph 4 states that “[a]s 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.” In other words,
the Board's credibility findings in the present case are entitled to a high
degree of deference and the burden rests upon the Applicants to show that the
inferences drawn by the Board could not reasonably have been drawn.
[20]
On
the procedural fairness issues, I agree that the proper standard of review is
correctness: Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1.
[21]
For
the reasonable apprehension of bias issue, I rely upon the test outlined by the dissent in Committee for Justice and
Liberty v. Canada (National Energy Board), [1978] 1
S.C.R. 369 (Liberty).
ANALYSIS
[22]
The
central complaint in this application is that the Officer was unreasonable to
base her Decision regarding a well-founded fear of persecution solely on
credibility findings. The Applicants say that the Officer should have gone on
to address the full basis of the Applicants’ claim. Because the Officer
curtailed the process on the grounds of credibility, she did not undertake a
full assessment and analysis of the Applicants’ case. The Applicants also say
that the Officer failed to provide any analysis of her credibility concerns
related to the merits of the claim.
[23]
A
full explanation and analysis of the problem was provided to the Applicants in
the Decision. The letter of January 9, 2008 explains that, because of the
conflicting evidence provided about the Principal Applicant’s teaching career
in Afghanistan, it was impossible for the Officer to establish that either of
the adult Applicants had any credibility. Not only did the Principal Applicant
contradict his own written submissions about his teaching career, his wife’s
evidence on the same topic contradicted the evidence of the Principal
Applicant.
[24]
The
Officer provided the Principal Applicant and his wife with a full opportunity
to explain what were, in fact, fundamental and incomprehensible discrepancies.
There was no problem with the interpreter. The Applicants confirmed that they
understood the questions. But they simply failed to answer the basic issues:
“When asked to explain this, you and your spouse were either unwilling or
unable to do so. This lack of credibility puts your whole claim in doubt, such
that it must be refused.”
[25]
The
overall lack of credibility meant that the Officer could not be “satisfied that
you continue to be seriously and personally affected by the civil conflict in Afghanistan.”
[26]
It
is also clear from the CAIPS notes that the Officer was not even able to
establish the Applicants’ identities. They said they had fled Afghanistan in a hurry
and so had been unable to obtain any identity documentation. But the Applicants
did not provide a satisfactory answer when the Officer questioned them on this
issue.
[27]
Had
the Officer been able to establish that the Applicants were credible people, it
is obvious that the process would have continued and a fuller assessment would
have been made.
[28]
The
issues, then, are whether the Officer’s general negativity finding was
reasonable on the facts and whether she was legally justified in curtailing the
application process after reaching a conclusion that she could not establish
that the Applicants were credible claimants.
[29]
In
my view, there is nothing in the evidence to suggest any kind of procedural unfairness.
The Officer made sure that the Applicants understood the interpreter. She asked
them simple questions on a fundamental issue. She asked the questions several
times. She explained the enormous discrepancies in the evidence to the
Applicants. She asked them to explain. She gave them time to explain. But they
either could not, or would not, explain the differences in their evidence.
[30]
There
was also nothing in the Officer’s conduct that breached the relevant guidelines
for interviewing refugees, and what the Applicants point to as inappropriate
comments in the CAIPS notes are entirely neutral and do not suggest a “strong
negative attitude the Applicants and a misunderstanding of events.” The fact
that the Applicants now point to such matters reveals how difficult they have
found it to establish fault with the Decision.
[31]
It
is important to bear in mind that the Applicants submitted no documentation
with their application. Hence, it was crucial that the Officer examine their
narrative carefully to establish the legal requirements for their claim. This
is what she attempted to do. There is nothing in her conduct that was
procedurally unfair and, given the enormous contradiction within the husband’s
own testimony as well as between the husband and wife over the husband’s
profession and what he had been doing in Afghanistan for over 30 years, there
is nothing in the Officer’s general negativity finding that would take it
outside of the range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[32]
The
only issue before me, in my view, is whether the Officer’s appropriate finding
on general credibility justified her not proceeding to address all of the
issues that would normally be addressed in this kind of claim.
[33]
It
is clear that the burden of proof rested upon the Applicants: Salimi v.
Canada (Minister of Citizenship and Immigration) 2007 FC 872 at paragraph 7.
[34]
It
is also clear that the Officer had good grounds for holding that the Applicants
were in breach of subsection 16(1) of the Act in that they had not answered
truthfully all questions put to them for the purposes of the examination. What
is more, the Applicants could not clearly establish their identities with the
usual documents.
[35]
Any
relevant country condition documents alone would not have provided an adequate
basis for a positive determination because the Applicants would have had to
demonstrate a link between their personal situation and the situation in Afghanistan. The
Applicants, however, could not provide credible evidence concerning their own
situation. The Officer found that general credibility was lacking. In other
words, there was no point in proceeding further with the application process.
[36]
But
was the Officer’s finding of a general lack of credibility on the part of both the
husband and the wife sufficient to dispose of the claim? The decision of the
Federal Court of Appeal in Sellan v. Canada (Minister of
Citizenship and Immigration) 2008 FCA 381 suggests that it was:
3.
In our
view, that question should be answered in the following way: where the Board
makes a general finding that the claimant lacks credibility, that determination
is sufficient to dispose of the claim unless there is independent and credible
documentary evidence in the record capable of supporting a positive disposition
of the claim. The claimant bears the onus of demonstration there was such
evidence.
4.
This leads
to the question of whether there was in the record before the Board any
evidence capable of supporting a determination in the respondent’s favour. In
our view, there was clearly no such evidence in the record. We are satisfied
that had the Judge examined the record, as he was bound to, he would no doubt
have so concluded. In those circumstances, returning the matter to the Board
would serve no useful purpose.
[37]
In
the present case, there was no independent and credible documentary evidence in
the record capable of supporting a positive disposition of the claim. This is
because there was no evidence to support a link between the documentation on
country conditions in Afghanistan and the Applicants’
personal situation. The Applicants’ personal evidence just could not be relied
upon. In addition to the contradictions, the Applicants could not even
establish their identities.
[38]
The
Applicants cite a number of cases for the proposition that the Officer was
required to proceed with an assessment of the documentary evidence and the full
extent of the application even though there was a negative finding of
credibility with regards to their alleged experience of persecution. For
example they point to the words of Justice Blais in Fernando v. Canada
(Minister of Citizenship and Immigration) 2006 FC 1349 at paragraphs 27, 29
and 30.
[39]
However,
Justice Blais’ conclusions on this point in Fernando were as follows:
31 Based
on the existing jurisprudence, it could thus be said that the key factor in
determining whether an assessment of the documentary evidence before the Board
will be required even if the claimant is found not to be credible, will depend
on the nature of said evidence and its relationship to the claim.
32 The applicant submits
that the panel ignored evidence that would show that shopkeepers in Colombo, such as
the applicant, have been the victim of LTTE extortion tactics and threatened
with bodily harm should they fail to comply.
33 Nevertheless, the onus
is to the applicant to demonstrate the link between the personal situation of
the applicant and the situations where extortion could amount to persecution in
some circumstances in Sri Lanka.
34 Once the lack of
credibility of the applicant has been established, I have difficulty believing
that the panel has the duty to look at the documentary evidence to find a link
to factual elements of the applicant's situation; the link has to be
demonstrated by the applicant, not the panel.
[40]
It
is the same with Justice Mactavish’s decision in Bastien v. Canada (Minister of
Citizenship and Immigration), 2008 FC 982. Everything Justice Mactavish
says in Bastien to the effect that a negative credibility finding is not
“the end of the matter” was premised upon the fact that there was no dispute in
that case that the applicant was a Haitian woman who would be returning to
Haiti. There was a link between the established facts and the risks alleged. In
the present case, no such link exists because the Applicants’ narrative was
reasonably found not to be credible.
[41]
The
Applicants have filed an affidavit with this application sworn by Muslina
Waziri, who is the Principal Applicant’s cousin in Canada. This affidavit does
not comply with Rule 12(1) of the Federal Court Immigration and Refugee
Protection Rules and, for the reasons given by Justice Pinard in Toma v.
Canada (Minister of Citizenship and Immigration) 2006 FC 779, at paragraphs
5-8, it can be afforded little weight and is insufficient to affect my
conclusion in this matter.
[42]
In
the end, the behaviour of the Applicants at their interview remains a great
mystery, but I can find no reviewable error in the Officer’s Decision.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
application is dismissed.
2. There is no
question for certification.
“James
Russell”