Date: 20110303
Docket: IMM-4507-10
Citation: 2011 FC 254
Toronto, Ontario, March 3, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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SALEM
GALYANA
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Applicant
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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
[1]
The applicant is a 40-year-old
Iraqi citizen of Chaldean Christian background. Before the Refugee Protection
Division of the Immigration and Refugee Board he claimed that he feared persecution
in Iraq as a Christian. Having been found by the Board not to be a practicing
Christian, he now submits that the Board erred in failing to consider whether
he faced persecution in Iraq because he will be identified as a Christian because
he is Chaldean.
[2]
I find that the Board made no such
error.
[3]
Mr. Galyana left Iraq,
travelling first to Jordan and then to Malta. He attempted to join his brother in Canada, but was
unable to obtain authorization to come here. He thought that he might be able
to reach Canada through the United
States of America, and so began his
journey. He traveled via Italy and Spain to Mexico, and from Mexico he attempted to enter the U.S., posing as
an American citizen, but was taken into custody when he could not provide any
documentation. He submitted a claim for asylum that was denied by U.S.
authorities and in July 2007 the U.S. Department of Justice’s Board of
Immigration Appeals issued its decision on removal. The applicant was
unsuccessful in reopening his claim, his work permit was withdrawn, and he was
arrested and detained for four months by U.S. authorities in June 2008. When the applicant was
released from immigration detention, he decided to leave the U.S., and came to Canada in
December 2008. In his Personal Information Form (PIF) he states that “[a]s a
practicing Christian I was afraid to go back to Iraq.”
[4]
The Board found that the central
issue in the claim was whether the applicant was a genuine practicing
Christian. That was the very issue put before the Board by the applicant in
his refugee claim and I find that it was a proper characterization by the Board
of the central issue.
[5]
Mr. Galyana and the truth are
strangers.
[6]
The Board noted that Mr. Galyana
had not been credible and trustworthy in past asylum claims and that he had
demonstrated a lack of credibility in his dealings with overseas visa officers,
the U.S. Department of Justice, and Citizenship and Immigration Canada.
Importantly, the Board found that the applicant
… has shown a
willingness to mislead, misrepresent, and lie regarding central issues and
minor details of his personal history, his experiences, and his claims for
protection. He was not forthcoming with the truth at the interview conducted
by Canadian Immigration on 8 December 2008. He lied about refugee claims
previously made, he lied about being under a deportation order, and he lied
about being previously detained or jailed. He initially maintained the story
he gave to the U.S. authorities was truthful and slowly admitted that some
information was correct and finally he told the officer everything he said to
the U.S. Justice Department was untrue.
[7]
The Board noted that in his PIF
the applicant admitted to “embellishment” of his life in Iraq, and that
at the hearing his counsel admitted that most of the statements in the U.S. story were
false. This meant that the applicant had lied about being arrested, beaten,
interrogated and tortured in an effort to obtain asylum. The Board also
challenged the applicant’s professed Christian faith due to his lack of
knowledge of the faith as well as the lack of objective evidence to support
it. As a consequence, the Board held:
This claim is
rejected for lack of credibility. As a result I find the claimant is not a
genuine practicing Christian and there is not more than a mere possibility that
he would face persecution based on religion or for any Convention ground in Iraq.
[8]
The only issue the applicant
raises is whether the Board erred by failing to consider whether he would be
perceived to be a Christian by virtue of the fact that he is a Chaldean, and
whether this would result in persecution sufficient to support a refugee
claim. This issue was not raised by the applicant before the Board.
[9]
In Sellan
v Canada (Minister of Citizenship and Immigration), 2008 FCA 381 the Court
of Appeal held that “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.” I accept the
submission of the applicant that where there is evidence that raises a risk
factor, the Board is obliged to analyze it even if neither the applicant nor
the Minister has raised it in argument. This is not to suggest that the Board
has a duty to undertake a microscopic examination of the record before it to
try to uncover a risk. The extent of the Board’s duty, in my view, is akin to
that described by the English Court of Appeal in Kerrouche, R (on the application of) v
Secretary Of State For Home Department [1997] EWCA Civ 2263, [1997] Imm AR 610 (31st July, 1997) in the context of a refugee
appeal tribunal:
The anxious
scrutiny which has to be exercised in relation to all issues which could affect
the safety of a refugee means that a more relaxed approach should be adopted in
relation to procedural failures than would be the case if a less important
issue were at stake. If therefore an appellate body, whether it is a Special
Adjudicator, of the Tribunal, is aware or ought to be aware that an appellant
has not relied upon a point which could materially improve the outcome of his
appeal, then the appellate body is under an obligation either to deal with the
point or at least draw it to the attention of the appellant. However appellate
bodies naturally focus primarily on the cases which are presented before them.
They cannot be expected to carry out an investigation themselves to see whether
there are points which have not been relied upon by an appellant that could
have been relied upon. They are not required to engage in a search for new
points. If however there is a readily discernible point which favours an
appellant although he has not taken it, the Special Adjudicator or Tribunal
should apply it in the appellant’s favour.
[10]
In this
case, the applicant submits that it was readily discernable from the record
before the Board that Chaldean Christians suffer persecution in Iraq and
therefore the Board was obligated to consider whether the applicant, as a
Chaldean, although not a practising Christian, would be viewed as a Christian
and thus subject to persecution. The applicant’s reasoning is as follows:
1.
Mr.
Galyana is Chaldean;
2.
all
Chaldeans are perceived in Iraq to be Christians;
3.
therefore
Mr. Galyana will be identified in Iraq
as a Christian;
4.
and since
Christians in Iraq face persecution; therfore
5.
Mr.
Galyana faces persecution in Iraq.
[11]
Even if
the first two propositions could be established on the record before the Board,
the third proposition only follows if Chaldeans are readily identified as such
in Iraq. There is nothing in the
record that supports that assumption. In sum, it is not readily apparent from
the record that Mr. Galyana will be identified either as a Chaldean or as a
Christian in Iraq. Accordingly, I find no
error in the Board’s decision.
[12]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application is dismissed
and no question is certified.
“Russel
W. Zinn”
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