Date: 20080221
Docket: IMM-2089-07
Citation: 2008 FC 225
Ottawa, Ontario, February 21,
2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
SEVER
RASHID KAREEM JABARI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated April 24, 2007 concluding
the applicant, a 17-year-old citizen of Iraq, was not a
Convention refugee or person in need of protection. This is a case where a boy
was sent by his father to seek refuge in Canada from violent
tribal revenge against his family in Iraq.
FACTS
[2]
The
applicant is a 17-year-old teenager from Iraq who arrived in Canada as an
unaccompanied minor on September 10, 2006. Upon his arrival, the applicant
filed for refugee protection, claiming a well-founded fear of persecution and
need of protection arising from a violent feud between his family and the
leader of another tribe.
[3]
The
applicant states the dispute began in 2005, when Fattah Mihayedn attempted to
forcibly take his father’s land. The applicant states that this individual is
the leader of the Mihayedn tribe and is connected with both the Iraqi central
government and the Kurdish government in the north.
[4]
The
applicant states that members of the Mihayedn tribe attacked his father. In March
2006, the applicant’s father complained to authorities about the land dispute.
In response to the complaint, tribal government officials arranged for both
sides discuss the issue, and eventually decided the land should be partitioned between
the parties. The applicant’s father opposed this partition.
[5]
On
June 9, 2006, the applicant states that Fattah Mihayedn, his two sons,
and seven other tribe members arrived at the applicant’s family home looking
for the applicant’s father. An altercation ensued with the members of the Mihayedn
tribe shooting at the applicant’s father, and the applicant’s father shooting
and killing Fattah Mihayedn. The applicant states his father then disappeared
and that the applicant, along with his mother and sister, went to the home of his
maternal uncle, where the applicant’s father met them five days later.
[6]
Fearing
he would be killed by members of the Mihayedn tribe as revenge for the killing
of Fattah Mihayedn, the applicant left Iraq with the
help of a smuggler in July 2006. After travelling through Iran and Turkey,
the applicant arrived in Canada in September 2006, upon which time he filed
a claim for refugee protection.
[7]
In
addition to fearing attempted revenge at the hands of the Mihayedn tribe, the
applicant also states in his Personal Information Form (PIF) that he fears
returning to Iraq on account of the fact that his paternal uncle was a
well-known Kurdish fighter and American supporter who was killed in Mosul in
2003.
Decision under review
[8]
On
April 24, 2007, the Board concluded the applicant was not a Convention refugee
or a person in need of protection. The Board held that the applicant’s credibility
was the determinative issue in its decision, and found the applicant was not
credible with respect to the material elements of his testimony. In its
decision, the Board made a number of negative credibility findings relevant to
this application. These included:
1. two of the
applicant’s reasons for fearing a return to Iraq were not
substantially addressed in his PIF narrative and port of entry declaration.
Accordingly, the Board held that neither reason impacted his decision to leave Iraq;
2. it was implausible
there would not exist any documentation over the government’s decision to
partition the land;
3. the
applicant’s evidence concerning the events of June 9, 2006 were found to
contain inconsistencies, and were therefore not credible;
4. there was no
evidence the applicant would be targeted upon return to Iraq because his
father is a fugitive; and
5. the
applicant’s general claim of dangerous country conditions in Iraq were not well-founded.
[9]
The
Board concluded that the applicant’s lack of credibility undermined his claim
for protection and established that he was neither a Convention refugee nor a
person in need of protection.
ISSUES
[10]
The
applicant raises two issues for consideration:
1. Did the Board
err in rejecting the applicant’s credibility by misquoting the applicant’s evidence
and ignoring aspects of the evidence; and
2. Did the Board
err in failing to analyze whether the applicant faces an objective risk of
persecution if returned to Iraq?
STANDARD OF REVIEW
[11]
The
first issue concerns the reasonableness of the Board’s credibility findings. It
is well settled that such findings are subject to the highest degree of
deference and will only be set aside if found to be patently unreasonable: see Gonzalez
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 128.
[12]
The
second issue deals with the sufficiency of the Board’s reasons. The failure to
provide adequate reasons is a breach of procedural fairness subject to the
standard of correctness: Via Rail Canada Inc. v. Canada (National
Transportation Agency), [2001] 2 F.C. 25 (C.A.).
ANALYSIS
Issue No. 1: Did the
Board err in rejecting the applicant’s credibility by misquoting the
applicant’s evidence and ignoring aspects of the evidence?
[13]
The
applicant argues the Board erred in a number of its credibility findings
concerning the applicant’s oral and written testimony. Specifically, the
applicant raises three situations in which the Board committed reviewable
errors. These include:
1.
the Board
misquoted and misinterpreted the applicant’s testimony regarding why he fears
returning to Iraq;
2.
the Board
placed too much emphasis in its decision on the applicant’s lack of supporting
documentation; and
3.
the
inconsistencies relied on by the Board in its assessment of the June 9, 2006
incident did not exist on the record.
I will consider each of these arguments in
turn.
The applicant’s fears in
Iraq
[14]
The
Board states at page 2 of its decision that the applicant provided three
reasons for why he fears returning to Iraq. These reasons were worded
in the following manner:
1.
Vendetta
from Fattah’s family and his tribesman due to the dispute of a property in his
father’s name;
2.
A known
paternal uncle who fought for the Kurdish; and
3.
All
terrorist groups.
After outlining the
three reasons, the Board stated that because the applicant’s PIF narrative only
emphasized the property dispute – i.e., the first reason – then it was
not plausible that either the second or third reasons had any impact on the
applicant’s decision to leave Iraq.
[15]
The
applicant, however, argues the Board misunderstood his testimony regarding his
fear of returning to Iraq; specifically, his fear of “a known
paternal uncle” and “all terrorist groups.” The applicant states he never
testified fearing all terrorist groups, but rather that, as a member of the
Sunni Muslim minority, he feared being targeted by the powerful Shia militia. Further,
the applicant states that he does not personally fear his paternal
uncle, who was killed in 2003, but rather fears possible reprisals from
anti-American militants because his uncle was a well-known Kurdish fighter and
American sympathizer. Finally, the applicant argues that the Board misinterpreted
his testimony with respect to the context of his fears; namely that he never testified
that the fears were his reason for leaving Iraq, but that
they were reasons why he feared returning to Iraq.
Essentially, they were prospective fears and were not associated with past
persecution.
[16]
Having
reviewed the record, I conclude that the Board did not make a reviewable error
in its treatment of the applicant’s fears. While the Board’s reasons could have
more effectively outlined the nature of the applicant’s fears, it is clear from
the record that the Board member understood that the applicant did not fear his
uncle, but rather his uncle’s notoriety and reputation. As the member stated at
page 40 of the transcript in reference to the applicant’s PIF narrative: “I
know he talks about it in there. I’m just talking about that you say your fear
emanates from that, you uncle’s – emanates from you uncle’s affiliation.”
[17]
Further,
while the applicant stated in his oral testimony that he fears returning to Iraq because of
the terrorist activities of the Shia militia, the applicant at no point asserts
that he was ever targeted by such militant groups, for reasons of his uncle’s
alleged notoriety or otherwise. The applicant provides no evidence that he had
ever been persecuted for reasons other than the family conflict and land
dispute that formed the substantive portion of his PIF narrative. Accordingly,
the Board was entitled to question the veracity of the applicant’s fears
relating to his paternal uncle and the Shia militia, neither of which was
substantively addressed in the applicant’s written evidence. For these reasons,
the Board did not err in concluding that such fears did not ground the
applicant’s decision to leave Iraq.
[18]
Further,
the fact that the fears were provided in the context of prospective fears had
no relevance on the Board’s ultimate conclusion that his fears were not
credible. However, the applicant also submits that the Board erred in summarily
discarding these reasons without addressing them in the context of an analysis
under section 97 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA). This argument forms the basis of the second issue of this
application and will be considered at that time.
Applicant’s lack of
supporting documentation
[19]
The
Board decided it was implausible there is no documentation of the government’s
decision to partition the land between the applicant’s family and the Mihayedn
tribe. Accordingly, the Board drew an “adverse inference” from the “lack of
such documents.” However, the applicant argues that the Board’s implausibility
finding was made in error because it was premised on an assumption that the decision
was made by a court functioning under a legal system that always issues
documents. The applicant, however, testified before the Board that the tribal
government’s decision to partition the land was an oral one in which no such
document was created. Accordingly, the applicant argues there was no
evidentiary basis for the Board’s finding. The Court agrees. The tribal
government is not a conventional system.
The events of June 9,
2006
[20]
The
applicant argues the Board made erroneous findings of fact with respect to
credibility concerning his oral and written recount of the events of June 9,
2006. These include:
1.
the Board erred
in concluding that the applicant’s PIF narrative never stated that members of
the Mihayedn tribe confronted and attempted to attack the applicant;
2.
the Board erred
in concluding that the applicant put forth two stories concerning when and how
they left their family home after the confrontation.
[21]
Having
reviewed the evidence, it is clear that the Board made erroneous findings of fact
respecting credibility, which were patently unreasonable. First, there are no inconsistencies
between the applicant’s evidence regarding whether he was confronted by members
of the Mihayedn tribe. Second, the applicant’s evidence regarding the events following
the shooting were not inconsistent. These patently unreasonable findings of
fact are material to the Board’s credibility finding about the applicant’s
principal fear and reason for fleeing Iraq. Accordingly, the Court
must set aside the decision.
Issue No. 2: Did the
Board err in failing to analyze whether the applicant faces an objective risk
of persecution if returned to Iraq?
[22]
The
applicant argues the Board erred in failing to give sufficient reasons for
rejecting the applicant’s risk upon returning to Iraq as mandated
by section 97 of the IRPA. The applicant argues that the Board erred by not
providing separate reasons for concluding that the applicant would not face a
risk to his life or cruel and unusual treatment or punishment if returned to Iraq.
[23]
In
support, the applicant cites the Federal Court decision in Smoudi v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1139, [2005] F.C.J. No. 1404
(QL), where Mr. Justice O’Reilly held at paragraph 7:
¶ 7 I realize that, in
some situations, negative credibility findings in relation to s. 96 will
obviate the need to consider s. 97. However, that is not always the case. I
agree with Justice Edmond Blanchard [in Bouaouni v. Canada
(Minister of Citizenship and Immigration), 2003 FC
1211, [2003] F.C.J. No. 1540 (QL)] when he said:
There may well be instances
where a refugee claimant, whose identity is not disputed, is found to be not
credible with respect to his subjective fear of persecution, but the country
conditions are such that the claimant’s particular circumstances, make him/her
a person in need of protection. It follows that a negative credibility
determination, which may be determinative of a refugee claim under s. 96 of the
Act, is not necessarily determinative of a claim under subsection 97(1) of the
Act. …
[24]
While
Mr. Justice O’Reilly’s decision states that there may be situations where a
negative credibility finding is not sufficient to obviate the need for a
separate section 97 analysis, it is also clear that that is not always the case
and must be considered on a case-by-case basis. As Mr. Justice Martineau stated
in Kandiah v. Canada (Minister of
Citizenship and Immigration), 2005 FC 181, [2005] F.C.J. No. 275 (QL) at
paragraph 16:
¶ 16 Subsequent jurisprudence has found the
lack of a separate section 97 analysis to be both reviewable and
non-reviewable, depending on the circumstances. … The distinction explicitly
depends on the nature of the evidence presented in the case.
[25]
In
the case at bar, the applicant raised two separate reasons why he feared
returning to Iraq. These
reasons, as outlined above, were that he feared potential persecution at the
hands of both the Shia militia and anti-American militants because of his
ethnicity and because of his paternal uncle’s reputation as a Kurdish fighter
and American sympathizer. The Iraqi country conditions establish that there is significant
ethnic violence in the country.
[26]
Moreover,
if the applicant’s principal claim is held to be credible, then he may face a
serious risk to his life because of ethnic violence against his family, and the
objective documentary evidence may show that there is not adequate state
protection in Iraq.
[27]
Accordingly,
the Court agrees that the Board did not provide sufficient reasons to address
this important issue, and the Court must remit this issue back to the Board.
[28]
Both
parties and the Court agree that this case does not raise a question that
should be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This
application is allowed and the decision is set aside; and
2.
The
refugee claim is referred back to a different panel of the Board for
redetermination.
“Michael
A. Kelen”
Email this Content