Date:
20130402
Docket:
IMM-2499-12
Citation:
2013 FC 324
Ottawa, Ontario,
April 2, 2013
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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ASHRAF ARIA
MARIAM ARIA
ARASH ARIA
ARIAN ARIA
NILOFAR ARIA
MORSAL ARIA
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Applicants
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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]
This
is an application for judicial review pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “Act”),
of a decision made by a member of the Refugee Protection Division of the
Immigration and Refugee Board of Canada (the “Member”), dated February 10,
2012, whereby the Member decided that the Applicants were neither Convention
refugees nor persons in need of protection pursuant to sections 96 and 97(1) of
the Act.
[2]
For
the reasons that follow, I find that this application for judicial review must
be granted, as the Member’s conclusions with regard to the credibility of the
Applicants and the availability of an internal flight alternative (IFA) are
unreasonable.
Facts
[3]
Ashraf
Aria (the “principal Applicant”), his wife Mariam and their four children
Arash, Arian, Nilofar and Morsal (collectively, “the Applicants”) are Afghan
citizens. The Applicants’ problems began in December 2009, when a group of
Pashtun warlords approached the principal Applicant and one warlord demanded to
marry his 13 year-old daughter Morsal. The principal Applicant rejected the
demand but the group returned approximately three weeks later. On that
occasion, a member of the group told the principal Applicant they would take
his daughter whether he agreed or not.
[4]
Out
of fear that the warlords would carry out their threats, the family left their
Kabul home and moved to Khair Khana, 30 km north of Kabul, and stayed with the
principal Applicant’s uncle. The Applicants learned from their former
neighbours in Kabul that the warlords were still looking for them. The warlords
told the neighbours they would find the Applicants wherever they were. One
month after having moved to Khair Khana, the principal Applicant saw the same
group of men driving around the area.
[5]
Immediately
following this sighting, the family decided to leave Afghanistan, but first
moved to Macroryan, where they stayed with a family member. In Macroryan, the
principal Applicant once again saw the same group of men prowling around the
area. The family then moved to Shar-e-Now, and then to Bagh-e-Rayes. The family
left for Pakistan on June 8, 2010, and arrived in Canada on June 15, 2010,
where they immediately sought refugee protection.
The
impugned decision
[6]
The
Member rejected the Applicants’ claim on February 10, 2012. The Member found
that the principal Applicant lacked credibility and alternatively decided that
the Applicants had a viable IFA in Herat.
[7]
The
Member made six negative credibility findings. First, the Member took issue
with the fact that the principal Applicant could not remember the exact date of
the group’s first visit. Second, the principal Applicant’s description in his
Personal Information Form (PIF) of the group’s vehicle as an “unusual truck”
was found to be inconsistent with his description of the vehicle as a “pickup
truck” at the hearing. Third, the Member found a discrepancy between the
principal Applicant’s PIF, where he stated that he was approached by a “group”
of men, and his testimony, when he was asked to specify the number of people in
the group, and indicated that there were four people in that group. According
to the Member, the principal Applicant was vague in many areas in his
PIF in order that “it would be easy for him to remember his allegations”.
Fourth, the Member found it implausible that the group of men would not have
followed the family to Khair Khana while they were in the process of moving.
Fifth, the Member found it implausible that the warlords would not have found
the Applicants after they left Kabul. Finally, the Member found it implausible
that the warlords would wait until their third visit to take the principal
Applicant’s daughter.
[8]
With
respect to the IFA finding, the Member’s reasons are brief enough to reproduce
them here in their entirety:
13. Even if I believed the claimant, which I do not,
I find that the claimant has an Internal Flight Alternative (IFA) in Herat. When this was put to the claimant, he stated that maybe these warlords would not
find them, but for certain other warlords would claim his daughter. The panel
does not have to accept the assumption of the claimant. Herat is a large and
cosmopolitan city. It is not credible that all young women are subject to
forced marriages which are not forced by their own families. If this were the
case, the objective evidence would mention this. Since it has not, I find that
the claimant and his family have a credible Internal Flight Alternative. The
claimant was a taxi driver and would be able to find work in Herat. It is not
required that the claimant would know people in the IFA and there are no
restrictions on persons such as the claimant and his family from traveling
there. Therefore, on a balance of probabilities, I find that the claimant and
his family have an Internal Flight Alternative in Herat.
Issues
[9]
This
application raises the following issues:
a)
Did the Member err by ignoring, misapprehending or misconstruing relevant
evidence when she found the principal Applicant to be not credible?
b) Did the Member err
in finding an IFA existed in Herat?
Analysis
[10]
It
is settled law that the standard of review for both credibility findings and
the availability of an IFA is reasonableness: Aguebor v (Canada) Minister of Employment and Immigration (1993), 160 NR 315, [1993] FCJ No 732 (FCA); Khokhar
v Canada (Minister of Citizenship and Immigration), 2008 FC 449, 166 ACWS
(3d) 1123.
a) Did the Member err
by ignoring, misapprehending or misconstruing relevant evidence when she found
the principal Applicant to be not credible?
[11]
It
is somewhat telling that the Respondent chose not to make submissions with
regard to the Member’s credibility findings. At the hearing, counsel for the
Respondent explicitly stated that she was not conceding the alleged errors
raised by the Applicant, but again refrained from making any submission in that
respect.
[12]
I
agree with the Applicants that the credibility findings are not reasonable, because
they are either not supported by the evidence, or based on a microscopic
assessment of the evidence. By way of example, with respect to the date of the
first visit, the principal Applicant explained that he did not remember the
exact date but did remember that it was on a Wednesday. He went on to explain
that he was so horrified that he forgot many things, and that it was not common
for Afghans to refer to dates. The Member rejected those explanations, first
because the principal Applicant was able to fill out the exact birth dates of
his children and second because he provided no objective evidence that it was a
cultural practice not to refer to dates. Such a finding is clearly
unreasonable. The principal Applicant was never asked to identify who completed
the birth dates of his children on the forms and how that information was
obtained, nor was he ever asked to explain any perceived inconsistency.
Moreover, there was no contrary evidence before the Member to suggest that the
principal Applicant’s testimony regarding the Afghan custom of referring to
days of the week rather than dates was not credible, and considerable caution
is required when assessing the norms and patterns of different cultures (Shaikh
v Canada (Minister of Citizenship and Immigration), 2005 FC 74, 136 ACWS
(3d) 928).
[13]
The
Member’s finding that the principal Applicant’s description in his PIF of the
group’s vehicle as an “unusual vehicle” is inconsistent with his description of
the vehicle as a “pickup truck” at the hearing is a clear example of the Member
ignoring, misapprehending and misconstruing the evidence given by the principal
Applicant. The principal Applicant was faulted for saying that the unusual
vehicle was of the type that was not used by police, when in fact he said the
exact opposite. Furthermore, the Member faulted the principal Applicant for
saying that he had indicated in his PIF that the vehicle was a pickup truck,
while in fact it was made clear at the hearing that the principal Applicant was
not referring to his PIF but rather to the expedited report.
[14]
As
for the fact that the principal Applicant referred to a “group” in his PIF and
failed to mention that there were four people in the group, I must confess that
I fail to see the relevance of this detail. It strikes me as a perfect example
of what the Court of Appeal had in mind when it cautioned against a microscopic
examination of the evidence in Attakora v Canada (Minister of Employment and
Immigration) (1999), 99 NR 168, [1989] FCJ No 444 (QL). The precise number
of men in the group is clearly a peripheral detail, which was discovered as a
result of the more detailed questioning from the Member. The principal
Applicant satisfactorily explained at the hearing that for him, four men
constituted a group of men just as five or ten would. There is nothing
egregious in such an explanation, and there is certainly no inconsistency
between his testimony and his PIF. It is well established that the Board should
not draw a negative credibility inference from the omission of a peripheral
detail in a refugee claimant’s PIF (Feradov v Canada (Minister of
Citizenship and Immigration), 2007 FC 101 at para 18, [2007] FCJ No 135
(QL). There is no analysis in the Member’s reasons as to why the perceived
omission with respect to the number of men was material. What appears to be the
material fact is that the principal Applicant was approached by a group of men
who sought to take his daughter; the number of men in the group is secondary.
[15]
The
Member also found it implausible that the principal Applicant would have taken
a month to remove valuables from the house where his daughter was threatened.
When reading the transcript, however, it appears that the Member ignored the
uncontradicted evidence on this point. The principal Applicant stated that he
and his family moved to his uncle’s place the day after the second visit, and
that he only returned to retrieve some valuables that had been left behind.
[16]
The
Member also misconstrued the facts when she stated the following, at paragraph
11 of her reasons:
The claimant stated that they moved three times to
secure their safety. In two locations, the claimant alleged that he saw the
group of men prowling around the area; however, they did not see him. The
claimant alleged that this group of men were powerful warlords. They twice
found him and his family, but only prowled around the area. This scenario is
completely lacking in credibility. If these powerful warlords could follow the
family to two other cities, it lacks credibility that they would not be able to
find the claimant and his family. Therefore, on a balance of probabilities, I
find the claimant is not a credible or a trustworthy witness.
[17]
First,
it is not clear what exactly the Member meant to say. She says that the group
“did not see” the principal Applicant and that “they twice found him and his
family”, which appears to be inconsistent. She then goes on to consider that
the men did not find the Applicants, which is certainly inconsistent
with the previous statement. More importantly, the finding that the group
“twice found [the principal Applicant] and his family” appears to rest, once
more, on a misconstruction of the evidence. The principal Applicant never said
that the group twice found him and his family, and there is no evidence that
the warlords followed the family. The evidence is that the principal Applicant
twice saw the warlords after they left Kabul, but that the warlords never saw
him. The fact that the group prowled around the first two areas where they
moved does not mean that they had followed them, and it cannot be inferred that
the group would have found the claimant in the third place where they
subsequently moved.
[18]
Finally,
the Member found the principal Applicant’s explanation as to why the group did
not take his daughter the second time instead of waiting until the third visit,
to be lacking in credibility. It was unreasonable to expect the principal
Applicant to know why the agents of persecution acted in the way they did, and
to make a negative credibility finding based on the principal Applicant’s
speculations on the actions of a third party (Kong v Canada (Minister of
Employment and Immigration) (1994), 23 Imm LR
(2d) 179, 73 FTR 204 (TD)).
[19]
In
summary, the credibility findings made by the Member are seriously flawed as
they are based on a misconstruction of the evidence, unreasonable inferences,
and questionable determinations of implausibility. As previously mentioned,
counsel for the Respondent has not seen fit to make written or oral submissions
in support of the Member’s credibility findings. In those circumstances, I feel
compelled to find that the decision of the Member with respect to credibility
issues does not fall within the range of reasonable outcomes.
b) Did the Member err in finding
an IFA existed in Herat?
[20]
In
finding an IFA, the Member was required to be satisfied on a balance of
probabilities that there was no serious possibility of the Applicants being
persecuted in Herat and that in all the circumstances, including circumstances
particular to them, conditions in Herat are such that it would not be
unreasonable for them to seek refuge there: Rasaratnam v Canada (Minister of
Employment and Immigration), [1992] 1 FC 706, 140 NR 138 (CA); Thirunavukkarasu v
Canada (Minister of Employment and Immigration), [1994] 1 FC 589, [1993] FCJ
No 1172 (CA).
[21]
There
were a number of country conditions documents before the Member referring to
the prevalence of kidnappings and rape of young girls by armed groups in Afghanistan, as well as forced marriages of young girls. There was also evidence indicating
that Afghans face serious unemployment problems, that an IFA in Afghanistan can only be sought where protection is available from the individual’s extended
family, and that relocation to an area with a predominantly different ethnic/religious
make-up may also not be possible due to the latent or overt tensions between
ethnic/religious groups. The evidence also spoke of the links between militias
and local and central administration throughout the country and their ability
to have an impact nationwide.
[22]
The
principal Applicant had indicated in his evidence that he had no family or
friends living in Herat, that he had never been there before and that he
believed that groups such as the people who sought to harm his family had links
everywhere. He was also unsure as to whether he would be able to find
employment in Herat.
[23]
It
may be, as argued by counsel for the Respondent, that the evidence can be
distinguished. In particular, she submitted that the evidence speaks of
instances where armed individuals or warlords have abducted and raped young
girls, but not of young girls being forced to marry warlords without family
consent. She also contended that the documentary evidence is to the effect that
a nuclear family could subsist in urban and semi-urban areas like Herat, without family or community support.
[24]
This
may well be the case, but in putting forward these submissions, counsel for the
Respondent is attempting to buttress the Member’s weak and inadequate reasoning
with reasons of her own. It is trite law that a party cannot supplement the
reasons given by the decision-maker on judicial review (Xiao v Canada (Minister of Citizenship and Immigration), 2009 FC 195 at para 35, [2009] 4 FCR
510). It is the reasoning of the Member that has to be reviewed by this Court,
not the reasons provided by counsel for the Respondent.
[25]
There
is another problem with the Member’s reasoning. Before going to the second
prong of the test (and even assuming that the conditions in Herat were such
that it would not be unreasonable for them to seek refuge there), the Member
was required to determine whether the evidence shows that there is, on a
balance of probabilities, a serious possibility of persecution in the IFA. The
Member appears to have misunderstood this first part of the test when she
stated that “[i]t is not credible that all young women are subject to forced
marriages which are not forced by their own families”. A “serious possibility”
of persecution does not mean that “all young women” would be subject to forced
marriages with warlords.
[26]
Not
only did the Member misunderstand the test, but she also misapplied it. The
principal Applicant never conceded that the warlords would not follow them in Herat, and the Member never assessed that possibility or the principal Applicant’s
assumption that other warlords would claim his daughter. The only analysis of
the Member is that she does not have to accept the assumption of the principal
Applicant. This falls far short of what was required, particularly in light of
the documentary evidence that was before the Member.
[27]
I
do recognize that a reviewing court must consider the entire record in
determining whether a decision is reasonable: Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, at paras 12 and 15, [2011] 3 S.C.R. 708. I do think, however, that in the
case at bar the Member’s mischaracterization of the first prong of the test
renders her entire IFA analysis unreasonable.
[28]
For
all of the foregoing reasons, I am of the view that the decision of the Member
must be quashed, that the application for judicial review must be granted, and
that the claim must be remitted to a differently constituted panel.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review
must be granted, and that the claim must be remitted to a differently
constituted panel.
"Yves de
Montigny"
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