Date: 19980709
Docket: IMM-4964-97
BETWEEN:
FAUZIA SAHADAT (a.k.a. MAHBUBA EBADY)
MASOD AHMAD SAHADAT (a.k.a. MASSUD EBADY)
SOSAN SAHADAT (a.k.a. SOHAL EBADY)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review of, and for an order setting aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("IRB"), dated October 22, 1997, finding the applicant not to be a Convention refugee.
[2] The applicants in this matter are Mrs. Ebady, hereinafter the principal applicant, and her two children. The principal applicant claims to have been born in Kabal, Afghanistan, and to have fled her country in September 1988, going first to India and then to Germany. Arriving in Germany in December 1988, she applied for refugee status but was refused. In July 1989, she married her husband, also an Afghan, who had obtained refugee status in Germany. The couple's children were born in 1989 and 1992 in Germany. The status of the children and of the principal applicant depended on the principal applicant's husband, a Convention refugee.
[3] In 1994, the family came to Canada using false identities and sought refugee status. The move was motivated by the hope that all could acquire status in Canada, and not just the husband, as was the case in Germany. As the refugee process commenced, counsel advised the claimants that immigration officers were aware that they had come from Germany. With their story unravelled, the family attempted to return to Germany, but that country refused to issue the proper entry documents, even after a deportation order was issued. In her application for refugee status the principal applicant urges that the applicants have no rights in any country other than Afghanistan. She alleges that, as she is university educated and has lived in a Western country since 1988, she risks persecution at the hands the fundamentalists presently in power in Afghanistan. Further, she no longer has family in Afghanistan and her children have never been to that country and do not speak the language, and they would there be denied further education.
[4] In a very brief decision, the IRB found the principal applicant was not credible, by reason of the fabricated identities the family created for themselves upon arriving in Canada. The key passage of the Board's reasoning reads as follows:
| The claimant and her husband had been in Germany for many years, when they decided to come to Canada and make a claim to refugee status, leaving the secure status they had in Germany. This action is not, in my opinion, consistent with someone alleging to have a well-founded fear of persecution. The claimant not only risked being deported but resorted to total misrepresentations by assuming a whole new identity for herself and her children. I am not prepared to overlook the serious credibility issue here. I understand that claimants in desperate situations resort to lying and misrepresenting facts, but in the case of the claimant she and her husband had been living in a secure and safe country. They had necessary legal status to live, work and be safe from deportation, yet they made a decision to lie and cheat in order to come to Canada. Did they not consider that they may be rejected in Canada? The claimant's testimony was not truthful, even after she admitted to having lied about her identity. While questioned by the RCO the claimant's evidence was internally inconsistent and inconsistent with other documents. In addition there were omissions of information relating to the whereabouts of her siblings. |
| The opportunity was given to the claimant to clarify the inconsistencies. However, the explanations that were given were not reasonable. I am not satisfied that the claimant was truthful giving her evidence, even after she admitted having lied about her identity. When she came to Canada, the claimant assumed the false identity for months: she only admitted to her lies after the issue was raised by the Minister's Representative. The claimant and her husband wanted to move to Canada, in my opinion, in order to be with the rest of the family and not because the claimant's status was threaten[ed]. |
| Having considered all the evidence, I find that I do not have sufficient credible or trustworthy evidence upon which to determine the claimant to be a Convention refugee. |
| Counsel for the claimant argued that the claimant has established her identity as an Afghani woman...I am not prepared to accept the documents as proof that the claimant lived only in Afghanistan, where she had nationality. The claimant may have been born in Afghanistan, but she may have also had citizenship in other countries. Since I do not believe any of her evidence, I am not prepared to believe that the only country she can go back to is Afghanistan. I agree with counsel that the claimant has no right to return to Germany, but I am not in a position to determine, based on the evidence before me, whether she has or does not have any other nationality. |
[5] The member who constituted the CRDD panel in this case concluded
| |
As stated earlier, I do not find the claimant's actions to be consistent with someone alleging to have a well-founded fear of persecution - namely leaving a safe and secure country risking deportation to Afghanistan. Her actions lead me to believe that she is either not concerned about being returned to Afghanistan or she has another country she can return to. |
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Therefore, I find the claimant Fauzia Sahadat, (a.k.a. Mahbuba Ebady) not a Convention refugee. ... |
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[6] For its part, the respondent urges that the IRB is entitled to decide adversely with respect to a claimant's credibility on the basis of contradictions and inconsistencies in the claimant's story and between the claimant's story and other evidence before the IRB. The Board is entitled to make an adverse finding regarding credibility on the basis of the implausibility of the claimant's testimony alone and contradictory testimony from a witness may cast doubt upon the totality of her viva voce evidence. It is submitted that the Board had good reason to doubt the applicant's credibility, as she and her husband had lied to the IRB about their identity and their stay in Germany. The respondent urges that the Court should not interfere with the IRB's assessment of credibility where an oral hearing has been held and where the IRB has had the advantage of seeing and hearing the witness unless the Court is satisfied that the IRB based its conclusion on irrelevant considerations or that it ignored evidence. Where the Board's inferences and conclusions are reasonably open to it on the record, the Court should not interfere, whether or not it agrees with the inferences drawn by the Board. In this instances, it is urged that the inferences of the Board as regards credibility were open to it.
[7] With respect, in my view, this application should be allowed.
[8] In my view, the panel erred in law by failing to identify in its decision and to elaborate upon the internal inconsistencies and implausibilities upon which its assessment of a lack of credibility is based. In Yukselir v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 180, a recent decision of Mr. Justice Gibson, his Lordship wrote:
| The CRDD, in very brief reasons, found the applicant's evidence to be lacking in credibility and trustworthiness. While it spoke of inconsistencies between the testimony of the applicant and two other witnesses on the one hand, and the documentary evidence on the other, it failed to provide any explanations or examples to support the finding of inconsistencies. |
| I am satisfied that it is appropriate for a reviewing Court to interfere where it is persuaded that the analysis of the CRDD in support its assessment of credibility is so flawed or incomplete that it cannot be determined with any degree of certainty that the assessment is other than perverse or capricious or made without regard to the evidence before it. |
[9] The panel, in the case at bar, wrote simply that "The claimant's testimony was not truthful, even after she admitted to having lied about her identity. While questioned by the RCO the claimant's evidence was internally inconsistent and inconsistent with other documents". No examples of these inconsistencies are given. With respect, in my opinion, the Board failed to meet the requirements set out in Armson v. M.E.I. (1989), 9 Imm. L.R. 2(d) 150 (F.C.A.) and Hilo v. M.E.I. (1991), 130 N.R. 236 (F.C.A.), that reasons for rejecting the applicant's claim on credibility grounds be set out in clear and unmistakeable terms.
[10] The panel's assertion that while it agreed that the principal applicant was a citizen of Afghanistan, it could not be sure she was not also a citizen of another nation, is simply speculation. I am of the view that the Board's conclusion that the applicant may well be able to return to another country other than Germany or Afghanistan is entirely speculative.
[11] In the case at bar, the Board had no evidence of any kind before it that the applicant could return to a country other than Germany. In the absence of any such evidence, when weighed against that of the applicant, it is my view that the Board resorts to conjectural conclusion and in effect avoids considering the issue of whether the fear claimed by the principal applicant was well-founded if she were to be returned to Afghanistan.
[12] In the circumstances, and with full respect for the difficult task of the CRDD in assessing credibility, absent reasons that specify inconsistencies, implausibilities or deficiencies in the evidence before the panel, the Court determines that the decision here in question should be set aside.
W. Andrew MacKay
Judge
OTTAWA, Ontario
July 9, 1998
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