Docket: IMM-5101-13
Citation:
2014 FC 1097
Toronto, Ontario, November 20, 2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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JABOR NAZARI
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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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JUDGMENT AND REASONS
[1]
Jabor Nazari’s claim for refugee protection was
dismissed on credibility grounds. The Board was not persuaded that
Mr. Nazari had a well-founded fear of persecution in Afghanistan because of his connection to the death of an Afghani drug dealer in Greece while Mr. Nazari was himself living in Greece.
[2]
In his memorandum of fact and law,
Mr. Nazari argues that the Board erred in its assessment of his
credibility by fixating on minor inconsistencies in his evidence rather than having
regard to the totality of his evidence. I have not, however, been persuaded
that the Board erred as alleged.
[3]
Mr. Nazari raised numerous additional
arguments at the hearing of his application. Not only was it unfair to the
respondent to raise these arguments for the first time at the hearing, but as
will be explained below, the arguments were also largely unsupported by any
evidence or were otherwise flawed.
[4]
As a consequence, Mr. Nazari’s application
will be dismissed.
I.
Background
[5]
Mr. Nazari is an Afghan citizen who spent
several years living in Greece. While there, Mr. Nazari says that he
worked as an interpreter for the police department and the public prosecutor’s
office in the city of Patra. Mr. Nazari says that his work led to him becoming
well-known to Afghan refugees involved in drug dealing in Greece. Mr. Nazari also says that he developed something of a public profile, having
appeared on television when reporters attended crime scenes and questioned
witnesses.
[6]
According to Mr. Nazari, many Afghanis
living in Greece were involved in drug dealing. He says that one such
individual was a distant cousin of his named Amir Ali. Amir allegedly died in
the course of a drug raid in 2011, and Mr. Nazari claims that some of Amir’s
relatives in Greece began to threaten him, accusing him of having informed the
police that Amir was drug dealer.
[7]
Mr. Nazari further claims that relatives of
Amir living in Afghanistan began to threaten members of Mr. Nazari’s
family who were still in Afghanistan, and that his family was forced to flee to
Pakistan in order to secure their safety. Mr. Nazari says that he would
himself be at risk in Afghanistan from the members of Amir’s family.
II.
Mr. Nazari’s New Arguments
[8]
As mentioned earlier, Mr. Nazari advanced a
number of new arguments at the hearing of this application, none of which were
mentioned in his memorandum of fact and law. For the following reasons, I give
no effect to any of these arguments which were:
•
Mr. Nazari’s claim that the Board failed to
properly consider his “personal medical situation”.
There was, however, no evidence before the Board that Mr. Nazari had a
medical condition that could affect his ability to testify. Moreover, Mr. Nazari
specifically denied suffering from any medical condition that could have affected
his ability to testify.
•
Mr. Nazari’s claim that the Board denied him
a fair hearing by constantly cutting him off, thus preventing him from getting
his story out. This was a general assertion made by counsel, with no specific
examples having been provided. Mr. Nazari’s claim is, moreover, not borne
out by a review of the transcript. Nor does Mr. Nazari’s affidavit
identify any evidence that he could have provided to the Board in support of his
claim but had been unable to adduce because of the Board’s conduct.
•
Mr. Nazari’s allegations of incompetence on
the part of counsel representing him before the Board. Not only did Mr. Nazari
fail to raise this argument in his memorandum of fact and law, he has also
failed to comply with this Court’s “Procedural Protocol” regarding allegations
against counsel in immigration cases. In particular, Mr. Nazari has not
provided any evidence that he notified previous counsel of these allegations or
that he filed a complaint on this matter to the Law Society of Upper Canada.
•
Mr. Nazari’s allegation that the
interpretation of his testimony was inadequate. This Court’s jurisprudence has,
however, established that concerns with respect to the adequacy of
interpretation must be raised at the earliest possible moment: Mohammadian v.
Canada (Minister of Citizenship and Immigration), 2001 FCA 191 at para.
19, [2001] 4 F.C. 85. Current counsel advised the Court that Mr. Nazari’s
previous counsel spoke Dari – Mr. Nazari’s language. Mr. Nazari’s previous
counsel also spoke English and would have thus been in a position to determine
whether Mr. Nazari’s testimony was being accurately interpreted. Neither
Mr. Nazari nor his counsel expressed any concern at Mr. Nazari’s refugee
hearing as to the adequacy of the interpretation. There is, moreover, no
evidence before this Court to support the claim that the quality of the
interpretation was inadequate.
III.
The Reasonableness of the Board’s Credibility
Assessment
[9]
The Board accepted that a drug dealer died in Greece in mid-2011, but was not persuaded that the death had any link to Mr. Nazari.
The Board’s finding that Mr. Nazari’s story was not credible was based, to
a large extent, on inconsistencies in his story regarding the events
surrounding the drug dealer’s death. Contrary to counsel’s assertion, what went
on in Greece was not irrelevant to Mr. Nazari’s claim, but was central to
it. This is because the risk that Mr. Nazari allegedly faced in Afghanistan was based entirely upon events that allegedly occurred in Greece.
[10]
It was reasonable for the Board to be concerned about
the inconsistencies in Mr. Nazari’s evidence. The Board routinely looks at
the consistency of a claimant’s evidence in assessing whether the story is
credible, and it is not unreasonable for it to do.
[11]
In an attempt to explain away the
inconsistencies in Mr. Nazari’s story, counsel made a bald assertion regarding
cultural differences between western and Afghani cultures with respect to the
importance of dates. “Cultural differences” are
frequently offered as an explanation for frailties in an applicant’s story. A
bald assertion there are such differences will not, however, ordinarily be
enough. If an applicant wants to rely on cultural differences to explain his or
her conduct or testimony, specific evidence of the cultural practice or norm in
question should be provided.
[12]
Mr. Nazari also asserts that the Board’s
reasons were inadequate because they do not specifically mention his claim that
they were forced to relocate to Pakistan. The Board is, however, presumed to
have weighed and considered all of the evidence before it: Florea v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 598 at para. 1,
(F.C.A.). Moreover, “perfection is not the standard”.
Reasons do not need to address all of the evidence and arguments, and the Board
is not required to make explicit findings on each constituent element leading
to its final conclusion: Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras. 14‑18,
[2011] 3 S.C.R. 708.
[13]
Mr. Nazari took particular issue with the
Board’s finding that there was an inconsistency regarding the date of the drug
raid. Mr. Nazari testified that the raid took place on June 16, 2011, whereas the
English version of a letter written in Greek by a lawyer in Greece stated that the raid took place on July 16, 2011. The transcript shows that when the
Board expressed a concern about this apparent inconsistency at the hearing,
Mr. Nazari’s counsel stated that he had noted the difference in dates before
the hearing and had drawn it to Mr. Nazari’s attention before the hearing,
indicating that it was “a mistake”.
[14]
Mr. Nazari produced new evidence on this
application from the individual who translated the lawyer’s letter from Greek
to English. This evidence confirms that the translator made an error, and that
the original letter stated that the raid occurred on June 16, 2011, and not
July 16. Mr. Nazari submits that there was thus no inconsistency in this
regard.
[15]
Even if I accept that there was such an error in
translation, the Board had numerous other reasons for disbelieving
Mr. Nazari’s story which have not been shown to be unreasonable. Consequently,
the application for judicial review is dismissed. I agree with counsel that the
case does not raise a question for certification.
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