Date: 20040323
Docket: IMM-1965-03
Citation: 2004 FC 433
Ottawa, Ontario, this 23rd day of March 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
AHMAD YAMA BAKTASH
(a.k.a. Ahmad Young Baktash)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Ahmed Yama Baktash arrived in Canada from Afghanistan in August 2001. He says he was a bookseller in Kabul. He claimed refugee status mainly on the basis of his fear of mistreatment by the Taliban who, he says, beat him and his father when they found out that he was selling English-language publications that contained references to Christianity. Mr. Baktash also claimed to fear conscription into the Taliban or the forces commanded by independent war-lords.
[2] A panel of the Immigration and Refugee Board dismissed Mr. Baktash's refugee claim. The Board found that his account of events was implausible and unsupported by any documentary evidence. It also found that conditions in Afghanistan have sufficiently improved to alleviate any fear Mr. Baktash might once have had. Mr. Baktash argues that the Board made serious errors in arriving at its conclusion and asks for a new hearing before a different panel of the Board.
[3] I will grant Mr. Baktash's application for judicial review. The Board appears to have either rejected Mr. Baktash's evidence too readily or failed to explain adequately why it found his version of events so unlikely that it was entirely implausible.
I. Issues
[4] Mr. Baktash raised two main issues:
1. Was the Board's finding that Mr. Baktash's story was implausible supported by the evidence?
2. Was the Board's conclusion that circumstances in Afghanistan had significantly improved justified?
[5] As I have concluded that a new hearing is required on the basis of the first issue, I decline to address the second.
II. Analysis
1. Was the Board's finding that Mr. Baktash's story was implausible supported by the evidence?
[6] The Board found it unlikely:
· that workers at a neighbourhood hospital would sell Mr. Baktash publications that contained allusions to Christianity, and that he would agree to sell them from his "tiny box container";
· that if Mr. Baktash intended to sell the magazines, he would keep them at the back of the store;
· that there was any market for the magazines in the local Muslim population;
· that the Taliban would not go to his home if they wanted to arrest him and charge him with selling Christian publications.
[7] These "implausibilities" caused the Board to reject Mr. Baktash's claim completely, even though it found his testimony to be consistent. It concluded that Mr. Baktash never owned a bookstore, was never assaulted by members of the Taliban and was not even in Afghanistan at the time. It noted that consistency does not necessarily make testimony that is inherently implausible more credible.
[8] However, in my view, the Board's findings of implausibility do not square with the evidence before it. Mr. Baktash testified that his store was a small kiosk or shed, not a "tiny box". He agreed to try to sell the English language materials because he needed the money. There was a small market for these publications, so they were kept at the back of the store, out of sight of the members of the Taliban who sometimes walked by. He showed them to customers who could read English and who, he believed, did not belong to the Taliban. Members of the Taliban came to his house looking for him after they found out about the publications.
[9] When the Board concludes that a scenario presented by a claimant is simply implausible, the Court may review that finding with somewhat more care and scrutiny than other credibility findings. The Court is often just as capable as the Board at deciding whether a particular scenario or series of events described by the claimant might reasonably have occurred: Divsalar v. Canada (Minister of Citizenship and Immigration) 2002 FCT 653, [2002] F.C.J. No. 875 (QL) (T.D.).
[10] Here, I find that the Board's implausibility findings are unsupported by the evidence or inadequately explained. On that basis, I will allow this application for judicial review and order a new hearing before a different panel of the Board. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed;
2. A new hearing before a different panel is ordered; and
3. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1965-03
STYLE OF CAUSE: AHMAD YAMA BAKTASH v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 3, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY : THE HONOURABLE MR. JUSTICE O'REILLY
DATED: March 23, 2004
APPEARANCES:
Harvey Savage FOR THE APPLICANT
Rhonda Marquis FOR THE RESPONDENT
SOLICITORS OF RECORD:
HARVEY SAVAGE
Barrister & Solicitor FOR THE APPLICANT
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Toronto Ontario
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