Docket: IMM-3244-15
Citation:
2016 FC 205
Ottawa, Ontario, February 16, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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IMANOV BELEK
(AKA BELEK
IMANOV)
(AKA IMINOV
BAHTIYAR YUNUSOVICE)
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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]
The applicant is a 41-year-old citizen of
Kyrgyzstan. He asks the Court to set aside a decision of the Refugee Appeal
Division [RAD], affirming the Refugee Protection Division’s [RPD] denial of his
refugee claim. He claims that he has been the victim of violent extortion
attempts in Kyrgyzstan and thus is a person in need of protection under section
97 of the Immigration and Refugee Protection Act, SC 2001, c 27.
Background
[2]
The applicant has a son, Ak-Tilek Belekovich
Imanov, and a wife, Rakhia Orunaliyevna Imanova. In Kyrgyzstan he ran a
business buying and selling cars but, in 2003, the business went bankrupt.
[3]
In September 2004, the applicant moved to Sweden
to find a “better life.” While in Sweden, he submitted
a claim for refugee protection. For the purposes of the claim, he used a false
name, a false birthdate, and fabricated his ethnicity. In mid-2007, his claim
was refused by Swedish authorities. He appealed the decision but, before the
appeal could be determined, his mother fell ill and he returned to Kyrgyzstan
in October 2007.
[4]
In November 2008, the applicant returned to
Sweden. By this time, the Swedish authorities had found out the applicant’s
true identity because he had used his genuine passport to leave Sweden in
2007. The Swedish authorities terminated his refugee appeal and he returned to
Kyrgyzstan in January 2009.
[5]
Following his return to Kyrgyzstan, the
applicant resumed his business of buying and selling cars, and also started a
cleaning supply business with his wife. After they opened the cleaning
business, the applicant claims that he and his wife were subject to extortion
demands by government officials and members of organized crime. The applicant
claims that he was attacked on three occasions after refusing to accede to
these demands. The first attack took place on August 20, 2013, the second on
February 4, 2014, and the third on May 3, 2014.
[6]
On September 7, 2014, the applicant left
Kyrgyzstan, after selling the cleaning business. His wife and son remained
behind. He made a refugee claim in Canada on or about October 16, 2014.
[7]
On February 20, 2015, the RPD rejected the
applicant’s refugee claim, largely on the basis that his story was not
credible. The RPD identified several inconsistencies or omissions involving,
variously, the applicant’s Basis of Claim form [BOC], his testimony at the
hearing, and documents that he provided. In most cases, the RPD put its
concern to the applicant and invited him to provide an explanation. In other
cases it did not. The areas of concern not put to the applicant for
explanation were the following:
•
The medical report for the August 20, 2013
assault states that the applicant was picked up by an ambulance and taken to
the hospital; however, the applicant stated in his BOC that some neighbours
found him and put him in a taxi.
•
The medical report for the May 3, 2014 assault
states that the applicant was delivered to the hospital by a passing car;
however, the applicant stated in his BOC that his wife found him and called an
ambulance to take him to the hospital.
•
The medical reports for all three assaults state
that the applicant was attacked by an unidentified group of people; however,
the applicant testified that, during all three assaults, his assailants stated
that they were acting on behalf of the Municipality of Bishkek. Further, he
testified that, during the August 20, 2013 and February 4, 2014 assaults, his
assailants told him that they were part of the Kamchi Kolbaev criminal group.
•
The applicant testified that he was taken to the
Republican Hospital following each assault; however, the medical reports he
submitted in evidence are from Sokuluksk Territorial Hospital.
[8]
The RAD considered three issues on appeal. It
examined whether the RPD acted unfairly when it failed to provide the applicant
with an opportunity to make submissions on all of its concerns about his
evidence and, more generally, whether it had erred in finding that the
applicant was not credible. In the context of the appeal the RAD considered
whether it should admit three pieces of new evidence submitted by the applicant
and if so the weight to be given to them. Lastly, it considered whether it
should convene an oral hearing, in light of the new evidence.
[9]
The RAD held that the RPD had not acted
unfairly. First, it held that, because the applicant had failed to raise his
concerns about procedural fairness before the RPD, he had waived his right to
raise those same concerns before the RAD. Second, the RAD held that the
applicant had not identified where on the record the RPD had failed to provide
him with an opportunity to address its concerns. Finally, the RAD held that,
based on its own review of the audio recording of the RPD hearing, the
applicant had been allowed to address the RPD’s concerns. It concluded that
the RPD’s credibility findings were reasonable.
[10]
The RAD found all three pieces of evidence were
admissible as new evidence; however it gave them little weight.
[11]
The first document was a letter from Raisa
Yakovlevna Firsova, a neighbour of the applicant’s wife and son, which states
that unknown Oriental people demanded that the applicant’s wife disclose his
whereabouts and threatened to kill him if they found him. Ms. Firsova also
writes that she witnessed the beating of the applicant’s wife and son. The RAD
placed little weight on the letter because it was not a sworn statement and
provided no details as to when the beating took place, how many people were
involved, and whether anyone reported it to the police.
[12]
The second document is a hospital record for the
applicant’s son, which states that he was hospitalized from February 10, 2015,
to February 14, 2015, with chest and skull injuries sustained as the result of
an assault by “unknown Oriental people.” The RAD
gave this document little weight because it is not an original and does not
include the name of the hospital or its address or telephone number. The RAD
also states that “[m]oreover, there is no evidence that
the medical staff witnessed the alleged beating.” Finally the RAD notes
that this document does not look the same as the hospital records submitted by
the applicant to the RPD.
[13]
The third document is a hospital record for the
applicant’s wife, which states that she was hospitalized from February 10, 2015,
to February 18, 2015, with a concussion and a facial soft tissue injury as the
result of an assault by “unknown Oriental people.”
The RAD placed little weight on it for the same reasons it gave regarding the
son’s hospital record.
[14]
In an affidavit from March 30, 2015, the
applicant provides the following context for these documents:
On or about February 20, 2015, I spoke to my
wife Rakhia Imanova on the phone who advised me that she and our son Ak-Tilek
Belekovich Imanov were physically attacked just outside our home in Bishkek on
February 10, 2015 by a group of men who looked to be of Asian origin. My wife
further advised me and I do verily believe that the men were specifically
looking for me and that they said that they needed to see me as I owed them money.
The men also warned her that they would kill me. My wife further advised me
and I do verily believe that she and our son had both been hospitalized as a
result of injuries sustained in the incident.
[15]
The RAD held that the new evidence did not raise
a serious issue as to credibility and therefore the test for an oral hearing
set out in subsection 110(6) of the Act was not met.
Issues
[16]
The issues raised in oral submissions are
threefold: (1) it was unreasonable for the RAD to find that the RPD had
provided the applicant with an opportunity to make submissions on all of its
concerns about his evidence; (2) whether the RAD erred in its assessment of the
new evidence, and in particular, in its decision to give that evidence little
weight; and (3) whether the RAD erred in failing to convene an oral hearing.
Analysis
[17]
I agree with the applicant that the RAD’s
reasoning on procedural fairness is unsatisfactory. The RAD’s finding that the
applicant had waived his right to raise procedural fairness on appeal does not
make sense, since there was no way that the applicant could have known, before
he received the RPD’s decision, that the RPD would base its decision on
concerns that he had not had an opportunity to address. Further, the RAD’s
observation that the applicant failed to pinpoint where in the record the RPD
denied him an opportunity to address its concerns is nonsensical as one cannot
pinpoint an omission. Finally, the RAD is just wrong when it finds that the
RPD gave the applicant an opportunity to respond to all of its concerns, when
in fact he was given an opportunity to respond to only some of its concerns.
[18]
Nonetheless, on the core issue of whether the
RAD was reasonable to find that the RPD had acted fairly, I conclude that it
was. The duty of the RPD in this respect was discussed by this Court in Tekin
v Canada (Minister of Citizenship & Immigration), 2003 FCT 357 [Tekin]
at para 14:
In addition, the Board did not err by
failing to specifically mention to the Applicant its credibility concerns
related to this omission from his PIF. The Board is not obligated by the duty
of fairness to put all of its concerns regarding credibility before the
Applicant (Appau v. Canada (Minister of Employment & Immigration),
[1995] F.C.J. No. 300 (Fed. T.D.); Akinremi v. Canada (Minister of
Citizenship & Immigration), [1995] F.C.J. No. 808 (Fed. T.D.); Khorasani
v. Canada (Minister of Citizenship & Immigration), 2002 FCT 936, [2002]
F.C.J. No. 1219 (Fed. T.D.) ). In this case, the Applicant was represented
by counsel, the parties were on notice that credibility was an issue and the
inconsistency between the Applicant’s PIF narrative and his oral testimony was
readily apparent. As a result, the Board was not required to put this
inconsistency to the Applicant and its failure to do so was not a reviewable
error (Ayodele v. Canada (Minister of Citizenship & Immigration),
[1997] F.C.J. No. 1833 (Fed. T.D.); Matarage v. Canada (Minister of
Citizenship & Immigration), [1998] F.C.J. No. 460 (Fed. T.D.); Ngongo
c. Canada (Ministre de la Citoyenneté & de l'Immigration), [1999]
F.C.J. No. 1627 (Fed. T.D.)). [emphasis added]
[19]
The underlined sentences in the above passage
apply entirely to the case at hand. Following Tekin, there is no
reviewable error as submitted by the applicant.
[20]
The applicant submits next that the RAD erred in
its assessment of the new evidence. The RAD assigned little weight to the
letter from Raisa Yakovlevna Firsova because it is not a sworn statement and
does not specify when the events described took place, how many Oriental people
threatened the applicant’s wife, or whether anybody reported the matter to the
police.
[21]
I agree with the applicant that documents that
corroborate some aspects of an applicant’s story cannot be discounted merely
because they do not corroborate other aspects of his story: Mahmud v Canada
(Minister of Citizenship & Immigration), 167 FTR 309 at paras 8-12 [Mahmud].
Here the RAD assigns little weight to a letter that corroborates some of the
applicant’s story simply because it fails to provide details that would further
corroborate his story. The RAD fails to explain why it would be reasonable to
expect these further details to have been provided, such that a negative
inference can be drawn from their absence: See Taha v Canada (Minister of
Citizenship & Immigration), 2004 FC 1675 at para 9. Absent such
justification, the RAD’s treatment of this document is unreasonable.
[22]
The same proposition applies to the RAD’s
assessment of the medical reports pertaining to the applicant’s wife and son.
The RAD assigns little weight to these reports, in part, because there is no
evidence that the medical staff who wrote them also witnessed the assault of
the wife and son. The fact that the medical reports do not directly
corroborate every aspect of the applicant’s claim that his wife and son were
beaten by extortionists does not mean that it should be given “little weight.” I suspect that the RAD was really
observing that it would be giving little weight to the statement in the report
that the harm had been caused by Oriental men because the authors of the report
had no first-hand knowledge of that fact. That may be a fair and reasonable
view; however, the remainder of the report, when considered in terms of what it
does establish (the beating, the date thereof, and the seriousness of the
injuries), is relevant to the applicant’s story and ought to have been
considered in that context. More critically, the RAD also gives these reports
little weight because they are “very dissimilar to the
medical reports provided by the Appellant for his claim [and the] RAD’s
disclosure shows that there is only one hospital in Bishkek.” The RAD,
as submitted by the applicant, is wrong. These reports are in exactly the same
format as that provided by the applicant. Accordingly, the weight given these
reports by the RAD was unreasonable, and may have had an adverse impact on the
decision it reached.
[23]
The RAD’s decision not to grant an oral hearing
was based on its assessment of the new evidence. Having found that its assessment
was unreasonable, the decision cannot stand and the appeal must be
re-determined by another panel. Accordingly, the issue of whether to grant an
oral hearing should also be left to be determined by that panel.
[24]
No question was proposed for certification.
There is none.
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