Date: 20080521
Docket: IMM-4469-07
Citation: 2008
FC 638
Toronto, Ontario, May 21, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
BAKHODIR KAMILOV
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Applicant
requests the judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
Act) of a decision of the Refugee Protection Division of the Immigration and
Refugee Board (the Board) dated October 10, 2007, wherein he was found not to
be “Convention refugee” nor a “person in need of protection’ under
sections 96 and 97 of the Act.
I. The facts
[2]
The
Applicant is a 32-year-old citizen of Uzbekistan.
He worked at an automobile parts company as the chief of the warehouse where
spare parts were kept.
[3]
He alleges
that the company was audited by the tax police in February 2005 because a
significant number of spare parts were unaccounted for. The Applicant claimed
that the owner of the company had been selling inventory for cash and without
paperwork to avoid paying taxes. However, according to the Applicant, the owner
blamed him and told the police that he had stolen the missing inventory.
[4]
The
Applicant claims that he was afraid that his former boss would kill him and
that the police in Uzbekistan, believing that he had
committed the theft, would torture him to extort a false confession. So he left
Uzbekistan, using his own passport, and
went to Ukraine in March 2005 where he lived
and worked for a year as a butcher.
[5]
He then paid
to obtain a Turkish passport and a Canadian visitor visa and left Ukraine for Canada where he arrived on an Air
France plane on 7 March 2006. Interviewed, with an interpreter, on 8 March 2006
by Canadian border officials, he submitts his PIF on 21 March 2006 and the
Board holds its hearing on 29 March 2007.
II. The decision of the Board
[6]
The Board
identifies the subjective and objective elements of the well-founded fear of
persecution and the credibility of the Applicant’s testimony as the key issues
in this case.
[7]
With
respect to the subjective elements of the fear of persecution, the Board notes
that the Applicant did not make a claim for protection in Ukraine where he worked and lived for
a year and neither in France despite having traveled through France on his trip to Canada. The Board acknowledges the
Applicant’s explanations for not claiming protection based on his assertion
that Ukraine deported asylum seekers and
the fact that he did not speak French while in transit. However, the Board
reasons that, since he was allegedly fleeing for his life, the Applicant would
have been expected to have made a claim at the first opportunity. The Board
acknowledges that the delay in making a claim is not determinative, but still it
was a relevant factor to consider. As a result, the Board draws a negative
inference from the failure to claim protection and finds that the Applicant
lacks subjective fear.
[8]
On the
objective element of the fear of persecution, the Board draws a negative
inference from the fact that the Applicant left Uzbekistan without ever having
spoken to his boss or to the police about the accusation or making any efforts
to establish his innocence through the Uzbekistan justice system by retaining a
lawyer. The Board also notes the absence of any evidence to support the
Applicant’s claim concerning the existence of a warrant for his arrest or of
any charges laid against him, and relies in particular on a communication of 23
February 2003 from Interpol confirming a search in centralized criminal records
with no reference found on the Applicant. The Board found that the Applicant
provided no reasonable explanation as to why there would be no record or
documentary evidence if he were wanted by the authorities for a theft of $U.S. 10 million.
[9]
The Board
concludes that the Applicant’s evidence is totally untrustworthy and lacking in
any credibility and that, on a balance of probabilities, the alleged incidents
underlying his claim never occurred. The Board finds that the Applicant is not
motivated by fear but is attempting to circumvent the immigration process in
order to be able to seek a better life in Canada.
[10]
In the end
result, the Board does not accept the Applicant’s evidence and concludes that
he has failed to establish a reasonable chance or serious possibility of
persecution or personal risk to his life if he were to return to Uzbekistan.
III. Issues
[11]
The
Applicant raises the following issues in this proceeding:
·
Did the
Board err by failing to give sufficient reasons in support of its conclusions?
·
Did the
Board err by ignoring testimony and documentary evidence or by basing its
decision on speculation?
IV. Standard of review
[12]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, at
paragraph 51, the Supreme Court of Canada states that “[…] questions of fact,
discretion and policy as well as questions where the legal issues cannot be
easily separated from the factual issues generally attract a standard of
reasonableness while many legal issues attract a standard of correctness. Some
legal issues however, attract the more deferential standard of reasonableness”.
Since the issues here raise mixed questions of law and fact, the Court finds
the standard of review to be that of reasonableness.
[13]
This
standard requires the Court to engage in a somewhat probing examination of the
reasons for a decision while also recognizing that, where there is some level
of expertise or familiarity with the subject matter on the part of the decision
maker, some measure of deference is owed. The Court’s analysis of
the Board’s decision will therefore 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, above, at paragraph 47).
V. Analysis
Did the Board err by failing to give
sufficient reasons in support of its conclusions?
[14]
The
Applicant argues that the Board fails to provide a proper analysis or adequate
reasons as to why it concludes that his evidence is totally untrustworthy and
lacking any credibility. He asserts that he provided detailed, consistent
evidence concerning his claim during his port-of-entry interview, in his PIF,
and at the hearing, but the Board fails to identify a single omission,
contradiction, inconsistency, or discrepancy in his evidence or make any
comments about his demeanour during his testimony. Therefore, the Board would
have erred by not expressing in clear and unmistakable terms its adverse
findings concerning credibility (see Hilo v. Canada (M.E.I.) (1991), 15
Imm. L.R. (2d) 199 (F.C.A.)).
[15]
But the
Board’s findings on credibility appear intimately connected to its conclusion on
the absence of a well-founded fear of persecution. And while the credibility
findings may not by themselves have been determinative of the claim, they still
are a crucial part of the Board’s decision.
[16]
The Court
cannot accept that the Board fails to provide adequate reasons in its decision
for making negative credibility findings against the Applicant. A careful and
thorough review of the Board’s decision as a whole demonstrates that,
throughout its reasons, the Board identifies the occasions in which it draws
negative inferences from the Applicant’s testimony and behaviour as well as
highlights what it believes were the implausibilities in his claim. Therefore,
it cannot be said that the Board does not express its credibility findings in
clear and unmistakeable terms or does not give sufficient reasons for its
conclusions in this respect.
Did the Board err by ignoring testimony
and documentary evidence or by basing its decision on speculation?
[17]
The
Applicant contests the Board’s conclusion that he failed to establish a
well-founded fear of persecution by arguing that the Board ignores or speculates
about evidence to decide as it does.
[18]
The Board
concludes that he lacks subjective fear because he did not make a claim in Ukraine. The Applicant argues that he
explained to the Board his reasons for doing so: he knew that Ukraine had
deported asylum seekers back to Uzbekistan
and he submitted documentary evidence that allegedly indicated that persons
similarly situated to him had indeed been denied refugee protection by Ukraine.
[19]
The
Applicant also argues that the Board erred in drawing a negative inference from
the fact that he did not speak to his boss, who was the person who had made the
false accusation, or the police, who routinely extracted false confessions by
torture. He also argues that the Board failed to acknowledge these allegations
of torture and ignored the corroborating documentary evidence.
[20]
In
addition, the Applicant argues that the inferences and conclusions drawn by the
Board from the Interpol check were erroneous and based on pure speculation. The
Applicant points out that the problems he alleged took place in 2005, whereas
the Board referred to a communication from Interpol dated “February 23, 2003”,
and that there was no evidence as to what information, if any, Uzbekistan shares
with Interpol. Furthermore, the Board assumed that there would be an Interpol
record of such a major crime, describing the theft as being worth $10 million
US, when the amount was really 10 million som (Uzbek currency) according to the
Applicant.
[21]
The Applicant
is asking more or less this Court to analyse and appreciate his proof and
conclude differently than the Board did. However this is not the role of this
Court. The Board with the benefit of its expertise has heard the applicant and
is therefore in a much better position than this Court to weight the evidence,
its weaknesses and strength, and decide on its acceptability.
[22]
This Court
has only to verify if the Board’s inferences and conclusions about the lack of
objective and subjective fear of the applicant are reasonable or not. Regarding
the risk of torture, the applicant has produced no documentary evidence to
support his testimony that criminal charges had been filed against him; and
considering that he then left Uzbekistan using his own genuine
passport while allegedly the police was looking for him and would torture him,
one can only doubt his claims of fear. Regarding the Applicant’s explanation
for not making a claim for protection in Ukraine, it appears that the Uzbekis who were
denied asylum in the Ukraine were deported pursuant to an extradition request
for their alleged involvement in a massacre in Uzbekistan, which was a very different situation from
the Applicant’s. As for the information from Interpol, the Respondent argues
that, regardless of the Board’s comments, this was not determinative of its
finding that the Applicant had not provided evidence of any charges or warrants
issued against him.
[23]
The reasons given
by administrative tribunals, such as the Board here, are not to be read
hypercritically by a court nor are these tribunals required to refer to every
piece of evidence that they received (see Cepeda-Gutierrez v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.)).
Furthermore, as the
Supreme Court expressed in Dunsmuir, above, at paragraph 47, a Court reviewing a decision on a standard
of reasonableness will be “concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.”
[24]
The
present affair turns on the Applicant’s failure to establish with credible and
trustworthy evidence the main subject of his claim – that is, the fact that he
is allegedly suspected of or being investigated in Uzbekistan for committing theft against his
employer.
[25]
Despite
the fact that the evidence which the Board allegedly ignored may establish an
objective risk to persons in Uzbekistan being investigated by the police (or,
with respect to the evidence relating to asylum claims in the Ukraine, that there
were particular refugee claimants that had been deported back to
Uzbekistan), the Applicant nevertheless was required to present credible and
trustworthy evidence about his own personal situation such that he would
fit the same profile of risk as those other persons to which he is claiming a
connection. [By analogy see Sibanda v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1400].
[26]
Here, the
Board finds that the Applicant was totally untrustworthy and lacking any
credibility about his own personal situation and it cannot be said that this
finding of the Board is unreasonable. Moreover, neither in the materials before
the Board nor in these proceedings has the Applicant been able to provide
evidence to corroborate his claim that the alleged theft occurred, that it was
or is being investigated, and that he was or is being sought in connection with
such an investigation. In other words, the Applicant failed to provide credible and trustworthy
evidence about his own personal situation that would fit him within the same
risk profile as other persons being investigated by the police in Uzbekistan.
[27]
Given that
failure, the evidence that was allegedly ignored is ultimately immaterial to
the Board’s decision. It is not an error for the Board to not discuss the
evidence relating to the risk of torture at the hands of the Uzbeki police when
the Applicant fails to show any reason that he would fall into the hands of the
Uzbeki police.
[28]
As for the
alleged errors with respect to the information from Interpol, this was not
determinative of the Board’s finding that the Applicant had not provided
evidence of any charges or warrants issued against him.
[29]
On the
overall the Applicant has failed to show that the impugned decision is unreasonable and falls
outside the range of acceptable outcomes which are defensible in respect of the
facts and law.
And therefore this application for judicial review will be dismissed.
[30]
The
Court agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE
FOREGOING
REASONS THIS COURT dismisses the applications.
“Maurice
E. Lagacé”
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