Date: 20070130
Docket: IMM-1663-06
Citation: 2007 FC 101
Ottawa, Ontario, January 30,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
FERAD FERADOV
HALIME FERADOVA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In
this application for judicial review, Ferad Feradov and Halime Feradova
challenge a decision by the Immigration and Refugee Board (“Board”) by which
their joint claim to protection under sections 96 and 97 of the Immigration
Refugee and Protection Act (IRPA), S.C. 2001, c.27 was dismissed.
I. Background
[2]
Mr.
Feradov and Mrs. Feradova are Bulgarian nationals. They came to Canada in 2000 to
visit their son and his family. Their son, Sedat Kerim, arrived in Canada from Bulgaria in 1997 and
was successful in claiming refugee protection here on the basis of a personal
history of persecution at the hands of the Bulgarian police. His wife followed
him in 1999 and the family now resides in Ontario.
[3]
Mr.
Feradov and Mrs. Feradova are Ethnic Turks. They are also Sunni Muslims. Their
claim to refugee protection was based on a central allegation that Mr. Feradov
had been beaten by the Bulgarian police after participating in a ritual
sacrifice of a ram in accordance with Muslim practices. According to Mr.
Feradov, the police became involved after a complaint. They ordered him to
appear at a nearby police detachment and accused him of disturbing the peace.
He said that he was beaten with a baton on the legs and feet to the point that he
had difficulty getting home. Apparently, no charges were ever brought against
him and he chose not to seek any form of redress for the assault.
[4]
Following
this incident, Mr. Feradov claimed that he and other Muslim villagers gathered
one thousand signatures on a petition to the village mayor seeking the
dedication of a public site to practice their religious traditions, including
ritual sacrifice. When the Bulgarian mayor refused this request, Mr. Feradov and
Mrs. Feradova accepted an invitation from their son to come to Canada. Their
subsequent application for humanitarian and compassionate relief under IRPA
was declined and it was then that they sought refugee protection.
II. The Board Hearing and Decision
[5]
The
Board took evidence from Mr. Feradov but Mrs. Feradova was not called to
testify. Most of the questioning of Mr. Feradov was conducted by the Board but
his counsel did ask him a few clarifying questions at the conclusion of his
testimony. Much of the questioning of Mr. Feradov was perfunctory and, in some
instances, it assumed a level of sophistication that clearly he did not have.
For instance, asking Mr. Feradov to respond to verbatim and complex passages
from official country condition publications was a largely pointless exercise
which served only to cast him unfairly as a poor witness.
[6]
Despite
acknowledging Mr. Feradov’s lack of education and sophistication, the Board
rejected his evidence and found him not to be credible or trustworthy. Its
findings in support of that adverse credibility assessment included attributions
of failed memory, testimonial inconsistencies and documentary omissions.
[7]
The
Board was particularly concerned with Mr. Feradov’s ostensible inability to
recall even the month of the police beating which was his central allegation of
persecution. In addition, the Board was troubled by Mr. Feradov’s inability to
identify the verse from the Koran by which the ritual sacrifice was supposedly
carried out. The Board also found an inconsistency between Mr. Feradov’s
Personal Information Form (“PIF”) narrative and his testimony as to who was
present at the sacrifice – whether friends or family or both.
[8]
The
Board made a number of additional findings in support of its negative
assessment of Mr. Feradov’s credibility including the following:
● It concluded
that someone other that Mr. Feradov and Mrs. Feradova had written the PIF
narrative describing an event which did not occur.
● It rejected
Mr. Feradov’s evidence of the beating, in part, because of his failure to
mention in his PIF the evidence he gave to the Board that his injuries
preventing him from driving home.
● It found it
implausible that Mr. Feradov was singled out by the police for a beating to the
exclusion of the others present at the sacrifice.
● It expressed
concern about Mr. Feradov’s inconsistent responses as to how and where he
obtained the one thousand signatures on the petition to the mayor.
● It attributed
evidence to Mr. Feradov that he had not involved the local Imam or Mosque in
the sacrifice ritual “because the Mosque was illegitimate and old” and that Mr.
Feradov was a non-practicing Muslim.
[9]
In
addition, the Board concluded that, by not seeking legal recourse, Mr. Feradov
had failed to rebut the presumption of state protection. It also relied upon
some of the tendered evidence of country conditions and concluded that
mainstream followers of Islam are not widely persecuted or discriminated
against and that human rights are generally improving in Bulgaria.
III. Issues
[10]
(a) What
is the appropriate standard of review for the issues raised by the Applicants?
(b) Did
the Board commit any reviewable errors in its decision?
IV. Analysis
[11]
It
is well accepted that this Court should treat the Board’s credibility
conclusions with great deference. In Perera v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1337, 2005 FC 1069,
Justice Michel Beaudry observed that the Court has consistently adopted a
standard of patent unreasonableness for issues of credibility:
[14] The Board's role to
assess evidence and the credibility of an applicant is widely recognized for
being part of its primary function. In this regard, the Federal Court of Appeal
has determined that the standard of review when dealing with a question of
credibility is patent unreasonableness.
[15] There is no longer any
doubt that the Refugee Division, which is a specialized tribunal, has complete
jurisdiction to determine the plausibility of testimony: who is in a better
position than the Refugee Division to gauge the credibility of an account and
to draw the necessary inferences? As 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 (Aguebor v. Canada (Minister of Employment
and Immigration) (1993), 160 N.R. 315 at pages
316 and 317 (F.C.A.)).
[16] This was recently
reiterated by the Federal Court in Umba v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 17
at para. 31, where Justice Martineau confirmed, after applying the pragmatic
and functional approach, that the appropriate standard of review when dealing
with the assessment of documentary evidence and the plausibility of the
Applicant's testimony is patent unreasonableness:
para.
31 In light of the above, in the particular case
before us, I would find that the balancing of the above-mentioned four factors
militates in favour of the application of two standards of judicial review: (1)
the patent unreasonableness standard in the case of the analysis of the
documentary evidence and the assessment of the applicant's credibility; [...]
[12]
In a number of recent decisions, this Court has applied a standard
of review of reasonableness simpliciter to the Board’s findings concerning
state protection. In Chaves v. Canada (Minister of
Citizenship
and Immigration),
[2005] F.C.J. No. 232, 2005 FC 193, Justice Danièle Tremblay-Lamer
conducted a pragmatic and functional analysis and found that the standard of
review on this issue should be reasonableness:
[10] Turning to the first of
those factors, decisions of the Board are not protected by a strong privative
clause (see Pushpanathan v. Canada (Minister of Citizenship
and Immigration), [1998] 1 S.C.R. 982). [See Note 2 below] The second and
third factors, however, militate in favour of curial deference. Whether state
protection is available, or whether the claimant has sought that protection,
engages the relative expertise of the RPD. And though the provision in question
in effect requires a determination of the rights of individuals claiming
refugee status, the legislation gives substantial discretion to the RPD.
[Footnote
omitted]
[11] However, the nature of
the question is key in this application and also brings into play relative
expertise. Deciding whether a particular claimant has rebutted the presumption
of state protection involves "applying a legal standard [i.e. "clear
and convincing confirmation of a state's inability to protect": Ward,
supra, at para. 50] to a set of facts", which according to the Supreme
Court constitutes a question of mixed fact and law: Housen v. Nikolaisen,
[2002] 2 S.C.R. 235 at para. 26. The RPD has relative expertise with respect to
the findings of fact and assessing country conditions. However, the Court has
relative expertise with respect to whether the legal standard was met.
Accordingly, the appropriate standard of review is in my view reasonableness
simpliciter. This is consistent with the rulings characterizing the issue of
state protection as a question of mixed fact and law: Smith, supra and Racz,
supra.
[13]
The
above-noted analysis of the standard of review applicable to the Board’s state
protection determinations has been followed in a number of subsequent
decisions: see Nkole v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1802, 2006 FC 1433 at
para. 4, Resulaj v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 337, 2006 FC 269 at
para. 17 and Robinson v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 588, 2006 FC 402 at
para. 8. I adopt the above analysis insofar as it is applicable to the
circumstances of this proceeding.
[14]
This
is one of the relatively rare instances where the Board’s adverse credibility
conclusion does not stand up to scrutiny and where it can be fairly described as
patently unreasonable. Here the Board drew several inferences that were
unwarranted. It also misconstrued significant aspects of Mr. Feradov’s
testimony. The cumulative effect of these errors is sufficient to send this
case back for redetermination because I am not satisfied that the result
obtained would necessarily have been the same in the absence of those errors.
[15]
One
of the Board’s key credibility findings was that Mr. Feradov was unable to
recall even the month of the alleged police beating. This is a clear
mischaracterization of his testimony. In response to the Board’s questions, Mr.
Feradov identified the day of the week as a Friday in the mid summer of 2000.
Then, in response to a leading question by the Board, he accepted that
the incident occurred on a Friday in mid-July, 2000. Obviously, the Board is
free to ask leading questions but when it does so it cannot fairly characterize
the witness’s affirmative response as a failure of memory.
[16]
The
Board’s criticism of Mr. Feradov’s evidence concerning his religious practices
and knowledge was also unwarranted. This is the same problem that was of
concern to the Court in Ullah v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1918 at para. 11 (T.D.).
The fact that Mr. Feradov could not identify the passage from the Koran which
dealt with ritual sacrifices is no basis for a credibility concern. Very few
well-educated Christians would fare any better if asked about their biblical
knowledge. For a semi-devout Muslim with a grade 7 education, Mr. Feradov
cannot be faulted for this supposed lapse.
[17]
The
Board’s attribution to Mr. Feradov of testimony that “he did not practice the
Muslim religion” and that he did not involve the local Mosque in the sacrifice
because it was “illegitimate and old” is also unwarranted. When he was asked if
he practiced his religion on a regular basis, Mr. Feradov replied: “We
practice it. My wife practices all, but by myself, no.” This is hardly an
acknowledgment that Mr. Feradov was a non-practicing Muslim. Similarly, nowhere
in the transcript does he describe the local Mosque as illegitimate and old.
[18]
The
Board’s concern about supposed omissions from Mr. Feradov’s PIF is similarly unjustified.
While the failure to mention material or key allegations of persecution in
one’s PIF is a reasonable basis for concern, the omission of peripheral detail
is not. This Court has frequently held that the Board should not be concerned
about minor or collateral omissions from an applicant’s PIF: for example see Perera
v. Canada (Minister of Citizenship and Immigration), above; Singh v. Canada (Minister of
Employment and Immigration) (1993), 69 F.T.R. 142, [1993] F.C.J. No. 1034
and Akhigbe v. Canada (Minister of Citizenship and Immigration), [2002]
FCT 249, 2002 FCT 249. It is well understood that these documents are often
prepared by representatives or on the advice of representatives with different
views of materiality. In this case, Mr. Feradov testified that “we did not
write [the “PIF”]”. Surprisingly, the Board found this response to be troubling
when, at most, it was an ambiguous reply to the Board’s question about the
failure to provide dates in the PIF. The Board’s additional concern about Mr.
Feradov’s failure to mention in his PIF that he could not drive home after the
police beating is an example of the Board analysing minutia with little more
significance than Mr. Feradov’s failure to state in the PIF how he got to the
police station in the first instance.
[19]
Mr.
Feradov’s PIF was clearly not intended to be an encyclopaedic recitation of the
evidence. To the contrary, it was obviously written as a very general summary
of the central aspects of his claim and the absence of collateral detail ought
not to have concerned the Board.
[20]
The
significance of Mr. Feradov’s identification of those who attended the
sacrifice ritual is similarly over-stated by the Board. The fact that he
mentioned the presence of only relatives in his PIF but testified that both
relatives and friends were present is the kind of microscopic difference that
the Board said it was mindful to ignore.
[21]
The
Board’s plausibility finding that it was not reasonable that Mr. Feradov would
be singled out for attention by the Bulgarian police also cannot be sustained.
Mr. Feradov testified that he arranged and carried out the sacrifice in
response to the illness of his grandchild. The fact that the police might
single him out from the others who had merely attended the event is not at all
implausible. If an example was being made of Mr. Feradov, he was an obvious and
vulnerable target. The Board’s finding of implausibility on this point is
untenable because the facts presented by Mr. Feradov were not “outside the
realm of what could reasonably be expected”: see Valtchev v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 1131, 2001 FCT 776.
[22]
While
there were unquestionably problems with other aspects of Mr. Feradov’s
testimony, the cumulative significance of the above-noted factual errors is
sufficient for a finding that the Board’s credibility conclusion was patently
unreasonable.
[23]
In
some cases, a finding by the Board that an applicant has failed to rebut the
presumption of state protection may stand alone as a basis for upholding a
negative refugee determination. I cannot find that to be the case here because
the Board’s state protection conclusion was based, at least in part, upon its
overall adverse credibility assessment of Mr. Feradov. The issues seem to me to
be sufficiently linked that the Board’s erroneous treatment of one issue necessarily
undermines its treatment of the other.
[24]
Finally,
I am concerned with the Board’s rather selective approach to the assessment of
the country condition evidence having particular regard to the treatment of
Turkish Muslims in Bulgaria.
[25]
In
the documentary record are references to the harassment of Muslims in Bulgaria. Police
brutality, although unconstitutional, was also recognized in a 2004 United
States Department of State report as a common occurrence apparently reinforced
by a culture of impunity. That report also recognized that victims of police
brutality were often too intimidated to lodge a complaint with the authorities.
That was precisely the concern expressed by Mr. Feradov who believed that he
would only be beaten again if he came forward with an official complaint. Such
a concern might well be natural for a person who had lived under a totalitarian
regime for many years and whose suspicion of the authorities might well linger
after the transition to democratic rule.
[26]
I
am, therefore, allowing this application with the matter to be remitted to a
differently constituted Board for reconsideration on the merits.
[27]
Neither
party suggested a certified question and I agree that no question of general
importance arises on this record.
JUDGMENT
THIS COURT ADJUDGES that
this application is allowed with the matter to be remitted to a differently
constituted Board for redetermination on the merits.
"R.
L. Barnes"
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