Docket: IMM-2685-16
Citation:
2017 FC 18
Ottawa, Ontario, January 6, 2017
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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BOBIR KHAKIMOV
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review by
Bobir Khakimov [the Applicant] pursuant to s. 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the IRPA], of a decision of
the Refugee Protection Division [RPD], dated May 26, 2016, finding the
Applicant to be neither a Convention refugee nor a person in need of protection
pursuant to sections 96 and 97(1) of the IRPA [the Decision].
II.
Facts
[2]
The Applicant is a 31-year-old Muslim and
citizen of Uzbekistan. His highest level of education is secondary school. He
is married with two young children. He worked for a few years as a carpenter
before becoming a financially successful business man in Uzbekistan; he had a
registered construction business that opened in 2008. He travels to buy car
parts and used cell phones to import and resell in Uzbekistan as part of an
unregistered business. He alleges fear of persecution on the grounds of fear of
harm by his father-in-law and on the basis of his religion and perceived
political opinion.
[3]
The Applicant married in 2008. His father-in-law
intensely dislikes him and wants someone more successful for his daughter. The
Applicant alleges that the frequent conflict with his father-in-law led him to
be very depressed; he began attending a mosque in October 2014, on the
suggestion of a friend, to help him attain peace of mind. He found it
psychologically helpful and would attend and pray frequently.
[4]
The Applicant travelled outside of Uzbekistan
regularly, allegedly for work and pleasure. He alleges that whenever he travelled
outside Uzbekistan, he would search the internet for news; when he returned, he
would share information he had gathered online regarding the corruption,
politics and religious persecution in Uzbekistan with his trusted friends. Internet
and information is severely restricted and controlled within Uzbekistan.
[5]
Problems between the Applicant and his
father-in-law allegedly escalated at his wife’s birthday party on December 1,
2014. In January 2015, the Applicant was called to the local Mahalla’s office.
According to the RPD, a Freedom House Freedom in the World 2014 report
on Uzbekistan that was contained in the National Documentation Package defines
Mahallas as local neighbourhood committees that wield much power in the country.
It states: “Open and free private discussion is limited
by the Mahalla committees, traditional neighbourhood organizations that the
government has turned into an official system for public surveillance and
control”.
[6]
The Mahalla chief is a friend of his
father-in-law’s. According to the Applicant, the Mahalla chief told him that
his father-in-law had reported that he was behaving strangely and that he had
become an Islamic radical. The Mahalla told him his father-in-law had also
reported that the Applicant had travelled to too many countries, visited banned
websites, told his friends that the Uzbek government is bad and was bringing
forbidden information into Uzbekistan.
[7]
The Applicant says he denied these allegations.
He informed the Mahalla that he was a “normal Muslim”
and that his father-in-law was telling lies. The Applicant alleges the Mahalla
warned him that he would be jailed if he did not stop bringing suspicion onto
himself; he was told to stop attending mosque, to not grow a beard and to not
wear Islamic clothes. The Applicant alleges that the Mahalla told people in the
neighbourhood about the Applicant and soon after he had no friends.
[8]
In April 2015 the Applicant shaved off his beard
and ceased attending the mosque as frequently as he had before then.
[9]
In December 2015, his father-in-law took his
wife and children and brought them to his house. When the Applicant went after
them, his father-in-law called the police. The police refused to interfere and
told the Applicant that a father has more rights than a husband and that his
father-in-law was powerful and well-known in the community. They informed him
he had gained a bad reputation in the neighbourhood as a religious fanatic. The
Applicant then went to the Mahalla, who told him they would never oppose his
father-in-law. The Applicant alleges he told the Mahalla he would move to a
different city, but was informed that he would not be allowed to de-register
his address “out of respect” to his
father-in-law.
[10]
While the issues with his father-in-law were
ongoing, the Applicant went on several trips to various countries, both with
and without his wife and children, including several countries in which he
could have sought asylum:
•
New Zealand in February 2015
•
South Korea in June 2014, January 2015 and February
2015
•
Finland from November to December 2014
•
United Kingdom from September 2014 to May 2015
•
Italy in September 2015
•
United States in September 2015, January 2016
[11]
The Applicant returned to Uzbekistan after each
of these trips except the January 2016 trip to the U.S. When asked why he did
not remain in the U.K. when he was there in May 2015, the Applicant stated that
his family was having a good time and his father-in-law had calmed down; he did
not think of claiming asylum in the U.K. at that time.
[12]
The Applicant landed in New York City with a
U.S. visa on January 14, 2016. On January 27, 2016, he made a refugee claim at
the port-of-entry [POE] at Fort Erie. He falls under an exception to the Safe
Third Country Agreement due to the fact that his brother lives in Canada. His
claim was referred to the RPD for a hearing.
III.
Decision
[13]
On May 26, 2016, the RPD determined the
Applicant was neither a Convention refugee nor a person in need of protection
under the IRPA. The RPD held that the Applicant’s re-availment was “determinative of the claim”; credibility was also an
issue for the RPD
[14]
The RPD noted that it had been provided with
little supporting documentary evidence regarding the Applicant’s alleged
persecution and was therefore required to rely on his word. It made note of the
Applicant’s success as a businessman in Uzbekistan and found him to be a
sophisticated claimant. It found that the Applicant’s actions were “not consistent with someone who is afraid of persecution in
Uzbekistan. In particular, the claimant’s frequent re-availment back to
Uzbekistan and his extensive travel to first world countries without claiming
asylum in any of them undermines his allegations of fear back in Uzbekistan”.
[15]
The RPD found the Applicant’s credibility was
undermined at the hearing by his denying that his father-in-law and the Mahalla
had accused him of being a radical or a terrorist. I note that despite denying
this at one point in his testimony, he also agreed, later in his evidence, that
such accusations in fact had been made. For this same reason, the RPD also found
it could only assign little weight to a letter it had before it, written by the
Applicant’s father, in which reference was made to “accusations”
against his son.
[16]
The RPD reviewed the National Documentation Package
[NDP] for Uzbekistan, the 2015 annual report from the United States Commission
on International Religious Freedom [USCIRF] and an Uzbek-German Forum for Human
Rights and Human Rights Alliance report on Uzbekistan provided to him by
counsel. It noted that the interaction with the Mahalla had allegedly occurred
in January 2015 and the Applicant had since then left and returned to
Uzbekistan on several occasions. It found that the Applicant appeared to not
have been subjected to any monitoring or surveillance as indicated by the
documentary evidence. It therefore concluded:
… these interactions with the Mahalla did
not occur as described, if at all, nor has the claimant come to the attention of
the government of Uzbekistan …. I also find that the [Applicant] has lied about
being identified as a possible radical in Uzbekistan by his vengeful
father-in-law. This undermines the [Applicant’s] credibility on a material
point.
[17]
The RPD found that the Applicant`s failure to
claim asylum in a number of safe countries and his continuous re-availment to
Uzbekistan “strongly undermine[d] his assertions of
fear in his country.” The RPD noted the Applicant`s explanation that he
had returned to Uzbekistan because his family was there and he did not want to
leave them; however, it found it difficult to reconcile his actions in light of
the “incredibly harsh and oppressive actions of the
Uzbek government against individuals with the profile” the Applicant advanced
for himself. It determined:
This is one of those unique cases where the
actions of the claimant so strongly undermine his assertions of fear that it
becomes determinative of the claim.
[18]
The RPD also found the Applicant had tried to
obfuscate his travel history by not fully disclosing his visa application
history, further undermining his credibility. In conclusion, it stated:
[20] As for the claimant`s assertions
that he is a devout Muslim and that he cannot practice his religion in his
country freely, I do not accept that the claimant is as devout as he would have
me believe and I reject this element of his claim as well. He has submitted a
letter from a mosque in Canada attesting to his religiosity and I find that he
has attended mosque here in Canada, however, this is not convincing or
persuasive evidence that the claimant`s religion led to difficulties for him
back in Uzbekistan.
[21] As a result of my credibility
findings above, and the claimant’s lack of a reasonable explanation as to why
he would leave many countries of safety to return to a country of alleged danger,
I find that the claimant`s allegedly self-endangering actions belie his fear
and make his motivations suspect. His claim fails under both sections 96 and 97
of IRPA.
[19]
It is from this decision the Applicant seeks
judicial review.
IV.
Standard of Review
[20]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.”
The issue of credibility is to be reviewed on a standard of reasonableness. Substantial
deference is to be afforded to credibility findings of the RPD: Rahal v
Canada (Minister of Citizenship and Immigration), 2012 FC 319 at para 22,
42 [Rahal]; Li v Canada (Minister of Citizenship and Immigration),
2011 FC 941 at para 33; Zaree v Canada (Minister of Citizenship and
Immigration), 2011 FC 889 at para 6; Geng v Canada (Minister of
Citizenship and Immigration), [2001] FCJ No 488 at para 15.
[21]
In Dunsmuir at para 47, the Supreme Court
of Canada explained what is required of a court reviewing on the reasonableness
standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making process.
But it is also concerned with whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
[22]
Questions of procedural fairness are reviewed on
the correctness standard: Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at para 43. In Dunsmuir at para 50, the Supreme Court of Canada
explained what is required when conducting a review on the correctness
standard:
When applying the correctness standard, a
reviewing court will not show deference to the decision maker’s reasoning
process; it will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with the
determination of the decision maker; if not, the court will substitute its own
view and provide the correct answer. From the outset, the court must ask
whether the tribunal’s decision was correct.
V.
Analysis
[23]
This case was ultimately decided against the
Applicant on re-availment; the RPD said re-availment was determinative of the
claim. The case also involved many credibility findings, and in that connection
it is useful to recall the centrality of credibility findings to the role of
the RPD. To begin with, the RPD has broad discretion to prefer certain evidence
over other evidence and to determine the weight to be assigned to the evidence
it accepts: Medarovik v Canada (Minister of Citizenship and Immigration),
2002 FCT 61 at para 16; Pushpanathan v Canada (Minister of Citizenship and
Immigration), 2002 FCT 867 at para 68. The Federal Court of Appeal has
stated that findings of fact and determinations of credibility fall within the
heartland of the expertise of the RPD: Giron v Canada (Minister of
Employment and Immigration) (1992), 143 NR 238 (FCA) [Giron]. The
RPD is recognized to have expertise in assessing refugee claims and is
authorized by statute to apply its specialized knowledge: Chen v Canada
(Minister of Citizenship and Immigration), 2003 FCT 805 at para 10. And see
Siad v Canada (Secretary of State), [1997] 1 FC 608 at para 24 (FCA),
where the Federal Court of Appeal said that the RPD:
… is uniquely situated to assess the
credibility of a refugee claimant; credibility determinations, which lie within
“the heartland of the discretion of triers of fact”, are entitled to
considerable deference upon judicial review and cannot be overturned unless
they are perverse, capricious or made without regard to the evidence.
[24]
The RPD may make credibility findings based on
implausibility, common sense and rationality, although adverse credibility
findings “should not be based on a microscopic
evaluation of issues peripheral or irrelevant to the case”: Haramichael
v Canada (Minister of Citizenship and Immigration), 2016 FC 1197 at para
15, citing Lubana v Canada (Minister of Citizenship and Immigration),2003
FCT 116 at paras 10-11 [Lubana]; Attakora v Canada (Minister of
Employment and Immigration), [1989] FCJ No 444. The RPD may reject
uncontradicted evidence if it “is not consistent with
the probabilities affecting the case as a whole, or where inconsistencies are
found in the evidence”: Lubana, above at para 10. The RPD is also
entitled to conclude that an applicant is not credible “because
of implausibilities in his or her evidence as long as its inferences are not
unreasonable and its reasons are set out in ‘clear and unmistakable terms’”:
Lubana, above at para 9.
[25]
In this case it is appropriate to examine the various
findings individually, bearing in mind of course that the Decision must
ultimately be assessed as an organic whole and not microscopically nor as a
treasure hunt for errors. The Applicant challenges the following findings; my
comments follow each.
A.
The Applicant says he was in Uzbekistan on
December 1, 2014; the RPD found his passport stamps indicated he was, in fact,
in Finland at the time. The Applicant says he was denied a fair hearing because
the RPD did not raise this with him at the hearing where he would have had an
opportunity to challenge that finding. Court comment: I agree this
raises a question of procedural fairness, to be assessed on the correctness
standard. In my view, the RPD must be given credit for being able to determine
the meaning of various stamps on a passport as lying within its field of
specialized expertise. That said, the question is whether, despite or given the
RPD’s particular expertise, it was nevertheless unfair to find this
inconsistency “undermine[d] his allegation” that
he was in Uzbekistan at the time of the birthday party, given that this was
when the Applicant alleges his troubles with his father-in-law began. In my
respectful view, the RPD should have raised this with the Applicant and failed
in not doing so. The issue then becomes whether this failure goes to a critical
point in the RPD’s assessment or whether it is immaterial. In my view, the
RPD’s failure to raise this issue with the Applicant is not material given the
RPD’s explicit determination that re-availment, not credibility, was “determinative”. In this connection I am satisfied
that the breach did not affect the decision: Mobil Oil Canada Ltd. v.
Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 and Yassine
v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308
(F.C.A.), cited in Patel v Canada (Minister of Citizenship and Immigration),
2002, FCA 55 at para 5.
B.
The Applicant alleges the evidence does not
support a finding that he was accused of being a terrorist by the Mahalla or
his father-in-law. Court comment: in my respectful view, the RPD’s
finding in this regard is supported on the record and therefore is reasonable. I
agree that the Applicant, at certain points of his testimony, answered as if he
understood the word “accused” to mean “charged,” as in formal steps having been taken
against him. However, the RPD was entitled to look at both the letter from the
Applicant’s father, which refers to “accusations”,
as well as the Applicant’s answers during the hearing. Moreover, the Applicant
himself reversed field in his testimony and answered “Yes”
to the question “You were accused of terrorism by your
father-in-law and the Mahalla, is that correct?” The RPD’s assessment of
the evidence is reasonable in the face of this admission by the Applicant.
C.
The Applicant says the RPD made an unreasonable
plausibility finding in determining the Mahalla believed him to be a radical
Muslim and rejecting the Applicant’s allegation that he was not reported to the
police or arrested due to his religious activities after they were reported to
the Mahalla by his father-in-law. Court comment: in my view, the RPD’s
finding is rationally connected to country condition evidence, which was
overwhelmingly to the effect that those with extreme Muslim views were closely
watched and subject to persecution. The record also supports the RPD’s finding.
In his Basis of Claim, the Applicant reiterates what he claims the Mahalla said
to him: “He said that while my father in law is
powerful and respected I have a bad reputation as a Muslim radical.” It
was open to the RPD to make an implausibility finding on this record.
D.
Doubts as to the Applicant’s future religious
persecution are not reasonable. Court comment: in finding that the
Applicant is “not as devout as he would have [the RPD] believe”, the RPD noted
he was attending a mosque in Canada. The RPD was not convinced, however, that the
Applicant’s religion had led to difficulties for him back in Uzbekistan. In
making this finding, the RPD acted unreasonably and confused the
forward-looking risk of persecution, which should have been assessed in this
case, with the Applicant’s current religious practice as it was tied to past
persecution.
E.
The Applicant says the RPD was overzealous in
its search for inconsistencies. Court comment: this allegation is based
on the RPD finding that the Applicant did not tell the truth about his visa
applications. The Schedule A Background Form asked whether the Applicant had
ever “been refused refugee status, an immigrant or
permanent resident visa…or visitor or temporary resident visa, to Canada or any
other country?” (emphasis added). He responded yes and identified that it
had happened on two occasions regarding applications for Canadian visas. Later,
he took steps to formally amended his answer to say he had been refused a
Canadian visa on three occasions. The Minister led evidence that, in fact and
in addition, the US had refused the Applicant a visa on six occasions and that
the U.K. had refused him a visa once. The Applicant was asked to explain these
omissions, to which he said he did not understand the form. This explanation was
reasonably rejected, because the Applicant is a sophisticated traveller. More
significantly, however, he failed to mention not one or two, but seven visa
rejections from two countries. Moreover, he failed to do so not only when
filling out the form for the first time, but then again when he went back and
deliberately amended his history visa rejections. Left unexplained is why, when
he obviously knew better, he maintained the untruthfulness of his original
answer concerning the U.S. and U.K. visas The Applicant says his omissions are
immaterial and irrelevant; with respect, I am far from persuaded by this
argument, particularly given the egregiousness of this almost calculated
omission on his part. There is no merit to the Applicant’s argument that the
RPD was “overzealous”: to the contrary it was
fairly and reasonably assessing the Applicant’s repeated re-availment as it was
required to do, and quite reasonably focussed on the Applicant’s re-availment
after the family trip to London.
[26]
As noted, the determinative basis of the RPD’s rejection
was his re-availment, noted as follows:
•
New Zealand in February 2015
•
South Korea in June 2014, January 2015 and
February 2015
•
Finland from November to December 2014
•
United Kingdom from September 2014 to May 2015
•
Italy in September 2015
•
United States in September 2015, January 2016
[27]
While there may be doubts about the Applicant’s
re-availment before April 2015, at which time he shaved off his beard and
ceased frequent attendances at the mosque, the challenge for the Applicant, as
identified by the RPD, was his decision to re-avail with his entire family
after a family trip to the U.K. in May of 2015. In my view, given the
reasonableness of its lack of credibility findings (which I already reviewed)
and the Applicant’s record of continuous uncompelled re-availments disclosed by
the record, it was open to the RPD to conclude that re-availment was
determinative. As Justice Crampton (as he then was) stated in Kostrzewa v
Canada (Minister of Citizenship and Immigration), 2012 FC 1449:
[26]… As has been repeatedly held by this
Court, a refugee claimant’s re-availment to the jurisdiction in which he or she
fears persecution or a type of harm contemplated by section 97 of the IRPA
seriously undermines allegations of subjective fear, particularly in the absence
of a compelling reason for such re-availment (Hernandez v Canada (Minister of Citizenship and Immigration),2012 FC 197 at para 21; Ortiz Garcia v Canada (Minister of Citizenship
and Immigration), 2011 FC
1346 at para 8; Mughal v Canada (Minister of Citizenship and
Immigration), 2006 FC 1557 at paras 33-35; Natynczyk v Canada (Minister
of Citizenship and Immigration), 2004 FC 914 at para 69).
[28]
In my respectful view, the RPD’s conclusion that
“[t]his is one of those unique cases where the actions
of the claimant so strongly undermine his assertions of fear that it becomes
determinative of the claim” is reasonable per Dunsmuir, in that
it falls within the range of decisions that are defensible on the facts and
law.
[29]
I have reviewed the allegations one-by-one to
assess the arguments raised by the Applicant, but judicial review is not
decided by then counting up the positives and subtracting the negatives. The
decision must be reviewed as an organic whole; it is not a treasure hunt for
error: Communications, Energy and Paperworkers Union of Canada, Local 30 v
Irving Pulp & Paper, Ltd, 2013 SCC 34 at para 54. In my respectful
view, viewed in its entirety, the Decision of the RPD falls within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law as required by Dunsmuir.
VI.
Certified question
[30]
Neither party proposed a question of general
importance, and none arises.
VII.
Conclusion
[31]
Therefore, the Application for judicial review
must be dismissed and no question will be certified.
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