Docket: IMM-5702-15
Citation:
2016 FC 1015
Toronto, Ontario, September 8, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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MADINA MASHANLO
RAMINA CHIMIROVA
KHUSSAR CHIMIROV
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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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JUDGMENT AND REASONS
Overview
[1]
The Applicants in this matter are the principal
Applicant, Khussar Chimirov, his wife, Madina Mashanlo, and their daughter,
Ramina Chimirova. They are citizens of Kazakhstan and claim that, as a result
of conversion from the Sunni branch of Islam to the Shia branch, they have
suffered persecution by the Sunni community and the police in Kazakhstan. The
Refugee Protection Division [RPD] of the Immigration and Refugee Board of Canada
determined that the Applicants are not Convention Refugees or persons in need
of protection under section 96 or 97 of the Immigration
and Refugee Protection Act, SC
2001, c 27 [IRPA]. The Applicants now seek judicial review of that
determination.
[2]
As explained in greater detail below, this
application is allowed, because I have found that the RPD erred in making
findings without regard to the evidence, related to conditions in Kazakhstan
and documentation corroborative of the Applicants’ claim.
Background
[3]
The Applicants’ claim is advanced in a Basis of
Claim [BOC] form and supporting narrative by Mr. Chimirov. The Applicants operated
a bakery in a marketplace in Almaty, Kazakhstan. They were raised in the Sunni
tradition but allege that, in March 2013, they began to experience pressure by
the owner of the marketplace to make donations to build a mosque. The proponents
of this initiative supported radical Islamic ideas, and Mr. Chimirov refused to
participate. He claims that subsequently several of their bakery contracts were
severed and, upon seeking assistance from the owner of the marketplace, he was
physically thrown out of the office. Mr. Chimirov alleges that the police
witnessed this and did nothing.
[4]
Mr. Chimirov alleges that a man named Zaur came
to his assistance and subsequently exposed him to Shiite values. He began
attending group meetings with this man at a praying house. This group wanted to
pray at a real mosque but could not, because they were unregistered. Mr. Chimirov
claims that his extended family severed any relationship with him and his immediate
family and that his prayer group was harassed and threatened. He says that the
police intervened but threatened his group with reprisals because they were not
registered.
[5]
Mr. Chimirov refers to subsequent incidents
where his house was trashed and stoned and he was attacked and taken to a
clinic for medical attention. The police were involved, following which his
family received threats for complaining to the police. Mr. Chimirov and his
family moved to stay with relatives, but he alleges they were followed and his then
pregnant wife was attacked, resulting in a premature labour and loss of the
pregnancy. They reported the incident to the police, who could not find anyone
responsible.
[6]
Mr. Chimirov and his family subsequently traveled
to the US and then to Canada, applying for refugee protection at the Canadian
border.
Impugned Decision
[7]
In its analysis of the Applicants’ claim, the
RPD first referred to the country condition documentation and stated it was
unable to find any reference to any significant problems for either the Shia in
Kazakhstan or converts to that branch of Islam. The RPD referred to documentary
evidence indicating that Kazakhstan is a relatively tolerant state with respect
to religion.
[8]
The RPD then turned to Mr. Chimirov’s
credibility and found him not to be credible based on inconsistencies in the
evidence he presented, including the port of entry notes, his BOC, and his
testimony. The RPD noted the presumption of truthfulness that is afforded to a
claimant, but found that presumption to be rebutted in this case by such inconsistencies.
[9]
The RPD also found it problematic that the
Applicants failed to produce any documents to corroborate Mr. Chimirov’s religious
conversion, the involvement of the police in the attacks, or the subsequent
hospital visits. It found that Mr. Chimirov had not established that he and his
family were converts to the Shia branch of Islam and rejected their claims
under sections 96 and 97 of IRPA.
Issues and Standard of Review
[10]
The Applicants submit the following issues for
the Court’s consideration:
A.
Did the RPD err in making its finding that the
claim was not well-founded?
B.
Did the RPD err in making its adverse
credibility findings?
[11]
While the parties did not make explicit
submissions on the standard of review, each has made arguments as to the
reasonableness of the decision. In the context of the particular errors alleged
by the Applicants, my conclusion is that the RPD’s decision is to be reviewed
on a standard of reasonableness.
Analysis
Did the RPD err in making its
finding that the claim was not well-founded?
[12]
The Applicants’ arguments on this issue relate
to the RPD’s consideration of the objective basis for their alleged fear. The
RPD concluded that their fear of persecution was not well-founded, because it
was not able to find any reference to any significant problems for either the
Shia in Kazakhstan or converts, as the documentary evidence indicated that Kazakhstan
is a relatively tolerant state with respect to religion.
[13]
The Applicants submit that this finding was made
without regard to the documentary evidence, given that the evidence indicated a
significant recent change in Kazakhstan’s historical religious tolerance with the
passage of a new law in 2011, requiring the registration of all religious
communities.
[14]
The RPD’s conclusion, that Kazakhstan is a
relatively tolerant state with respect to religion, was based on an April 2014
document, published by the United Nations Office of the High Commissioner for
Human Rights, containing the preliminary findings of H. Bielefeldt, the Special
Rapporteur on Freedom of Religion or Belief [the Bielefeldt Report]. However,
the Applicants point out that, while the Bielefeldt Report does refer to
religious pluralism as a hallmark of Kazakhstan’s society traceable far back in
history, it focuses on the current status of freedom of religion in that
country, and one of the report’s principal concluding recommendations is the
need for far-reaching reforms of the 2011 Law on Religious Associations.
[15]
The Bielefeldt Report states that this law,
which requires all religious communities to register, was a major issue in many
of Mr. Bielefeldt’s discussions. The report states that a main problem
concerning the administration of religious registration is that unregistered
religious groups can hardly exercise any collective religious functions in
Kazakhstan. Any of their activities are deemed illegal and can incur serious
sanctions. Mr. Bielefeldt refers to hearing credible stories about police raids
on the premises of unregistered groups.
[16]
While the Bielefeldt Report states an
appreciation of the Kazakhstan government’s motivation to counter religious hatred,
intolerance and extremism, it recommends that registration not be a mandatory
requirement for religious community practice, so that unregistered communities
can operate free from discrimination and fear of intimidation.
[17]
The Applicants also referred to a number of
other documents in the National Documentation Package [NDP] for Kazakhstan
which speak to the consequences of the 2011 law. The Applicants note that these
documents refer to the Kazakhstan government requiring all Muslim groups to
join the Sunni Hanafi Spiritual Administration of Muslims in Kazakhstan in
order to obtain registration; to Shia and Ahmadi Muslims being denied legal
status; and to the Kazakhstan government increasingly seeking to constrain
religious organizations whose views are not in line with the state approved
version of Islam.
[18]
The Applicants also note that, in their written
submissions to the RPD, they expressly cited some of this documentary evidence
including reference to the denial of legal status to Shia Muslims (in the
Annual Report 2014 of the United States Commission on International Religious
Freedom) and an article referring to the Bielefeldt Report urging that
Kazakhstan end mandatory registration of religious communities.
[19]
The Respondent argues that the issue of
religious registration is peripheral to the fact pattern of the Applicants’
claim. While I agree that the claim is not premised principally on persecution
pursuant to the 2011 Law on Religious Associations, I note that Mr. Chimirov’s BOC
narrative refers to his inability to go to a mosque because it was virtually
impossible to get official registration. This resulted in negotiation with a
mosque to use their premises before the regular congregation, and it was while
leaving this mosque after one of their Friday prayer sessions that Mr. Chimirov
alleges his prayer group was harassed and threatened, resulting in involvement
of the police which he says exacerbated the problem.
[20]
I also note the issue of religious registration
to have been the subject of testimony by Mr. Chimirov before the RPD. The
transcript indicates that he testified the police threatened to imprison him
because the Shiite group was not registered. The RPD member stated that he had
looked for and could not find any evidence about that and noted the Bielefeldt
Report’s reference to religious pluralism being a hallmark of Kazakhstan
Society. In response to that statement by the member during the hearing, the
Applicants included in their post hearing submissions the references to the
documentary evidence noted above, including the statement that Shia and Ahmadi
Muslims have been denied legal status.
[21]
I am conscious of the Respondent’s argument that
the role of the Court on judicial review is not to re-weigh the evidence that
was before the RPD, particularly in the context of country conditions
documentation. However, given that the inability of Mr. Chimirov’s Shiite
prayer group to register formed part of the fact pattern surrounding his
alleged persecution, and given the substantial quantity of evidence identified
by the Applicants in the NDP which speaks to the negative impact upon religious
freedom of the 2011 Law on Religious Associations, I find this case to fall
within the principle set out in Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35. That is, the more
important the evidence that is not mentioned specifically and analyzed in an
agency's reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact without regard to the
evidence. I find the Applicants’ argument to this effect particularly
compelling, given that the RPD relied upon the Bielefeldt Report for its
conclusion as to religious tolerance in Kazakhstan, while one of the principal
recommendations of this report concerned the effect of the 2011 Law on
Religious Associations upon religious freedom.
[22]
For these reasons, I find the RPD’s conclusion,
that the Applicants’ fear of persecution is not well-founded, to be
unreasonable.
Did the RPD err in making its
adverse credibility findings?
[23]
I also find the RPD to have made a reviewable
error in its analysis of corroborating documentation while considering Mr.
Chimirov’s credibility. Among the reasons for the RPD’s adverse credibility
findings was the lack of documentation corroborating his claim. The RPD’s
decision refers to the member having asked Mr. Chimirov if he had any
documentation regarding the court, the police or the alleged hospital visits.
The decision then refers to Mr. Chimirov stating that he thought they were at
his mother’s residence and admitting that he had not made any attempts to
acquire them from his mother. The RPD notes that, where it makes a general
finding that a claimant lacks credibility, that determination is sufficient to
dispose of the claim unless there is independent and credible documentary
evidence in the record capable of supporting a positive disposition. It
concludes that Mr. Chimirov has not met his onus to demonstrate that there was
such evidence.
[24]
However, this analysis appears to overlook the
fact that the evidence before the RPD included two discharge letters, related
to the hospitalization of Mr. Chimirov and Ms. Mashanlo, which described their
injuries and, in Ms. Mashanlo’s case, refers to the resulting loss of her
pregnancy. Indeed, contrary to the RPD’s statement in the decision, the transcript
of the hearing indicates that, when the member asked if he had a report from
the hospital, Mr. Chimirov responded that he did, and the Applicants’ counsel
noted that there was a report for both him and his wife which had been tendered
in evidence as exhibits.
[25]
The Respondent argues that the RPD’s adverse
credibility finding related not to the lack of corroborating documents but to
the Applicants’ lack of effort to obtain such documents. While I agree that the
RPD was taking into account such lack of effort, it is apparent from the
decision that it was also influenced by the absence of the documents themselves.
Therefore, the RPD’s failure to consider the corroborative effect of the
documentation from the hospital, and the fact that it appears to have entirely overlooked
this documentation in reaching its decision, makes this portion of the decision
unreasonable.
Conclusion
[26]
Having found reviewable errors in the RPD’s
findings both as to the well-foundedness of the Applicants’ claim and as to Mr.
Chimirov’s credibility, this application for judicial review must be allowed
and the matter returned to the RPD for redetermination by a different member.
[27]
Neither of the parties proposed any question of
general importance for certification for appeal.
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