Date: 20050803
Docket: IMM-7186-04
Citation: 2005 FC 1058
Toronto, Ontario, August 3, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
MOHAMMAD NASEEM SHARIFI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated July 23, 2004, wherein it was determined that the applicant is not a Convention refugee nor a person in need of protection
[2] The applicant requests:
1. An order setting aside the decision;
2. A declaration that the applicant is a Convention refugee;
3. In the alternative, an order that the matter be referred to a differently constituted Board;
4. Any other order that this Honourable Court deem just.
Background
[3] Mohammad Naseem Sharifi (the "applicant") claimed to be a citizen of Afghanistan who had a well-founded fear of persecution on the basis of race and membership in a particular social group. As an ethnic Pashtun, he fears persecution by the Tajiks and other members of the former Northern Alliance.
[4] The applicant alleged that he initially left Afghanistan in May 2001 to escape the Taliban. He had been trained as a dental technician and was working in a clinic run by the Swedish Committee for Afghanistan, treating a female patient. He alleged that the Taliban jailed him for two weeks, beat him and forced him to sign an undertaking not to examine women. He escaped to Pakistan where he stayed until April 2002.
[5] The applicant alleged that in April 2002, he returned to Afghanistan as the Taliban were no longer in power and discovered that a local Tajik commander (Karim) had seized his family's land in Qarabaugh, Afghanistan. He was confronted by four armed associates of Karim who beat and detained him for a week, but he managed to escape and walked to Kabul. He stayed with a friend, immediately sold his house and fled to Pashwar, Pakistan, leaving his wife and three daughters behind with her parents. They joined him a week later. The applicant left Afghanistan on or about April 20, 2002 and after a journey allegedly lasting over three months, made his way to Toronto and made a refugee claim on August 7, 2002.
[6] The hearing into the applicant's claim was held on March 22, 2004 and denied on July 23, 2004.
[7] This is the judicial review of that decision.
Decision of the Board
[8] The Board held that the applicant had failed to provide sufficient credible and trustworthy evidence to establish his personal identity, particularly that he is a national of Afghanistan and only Afghanistan.
[9] The Board noted numerous problems with the applicant's documentary and viva voce evidence on which it based its credibility finding, including but not limited to:
1. The applicant did not recognize the meaning of the "Pashtunwali Code" referred to in the documentary evidence, the traditional social code followed by the Pashtuns in Afghanistan.
2. The Afghan Association of British Columbia concluded that the applicant "is an Afghan by origin" but not by nationality, a term the documentary evidence suggested the Association holds is a more formal subsisting relationship with Afghanistan than origin.
3. The applicant testified that he presented the Association with a copy of his alleged Afghani taskera identification document and his original alleged Afghan Driving Permit; however, the Association questioned him as if he had not presented them with any identification at all.
4. The applicant's taskera identification document does not conform with the description of authentic taskera documents in the objective documentation supplied by a documentalist with the Danish Immigration Service, in that the only concordance between his document and the description is that his document has a paper cover that matches the description and his photograph is on the fourth page.
5. The applicant's taskera identification differs from the objective documentation description in that it is a different colour, the national symbol appears on every page rather than just pages 3 to 7, and either his picture does not appear on the fourth page or the number of the identity card appears at the back, not the front, depending on whether the document is read from left to right or right to left.
6. The applicant's taskera was ostensibly issued in 1994 by the "Islamic Republic of Afghanistan"; however, the government at that time had proclaimed the country as the "Islamic State of Afghanistan" and it was not until January 2004 that the country was named the "Islamic Republic of Afghanistan".
7. The applicant's driving permit was allegedly issued in September 1996 by the "Democratic Republic of Afghanistan" which was the name of the country from April 1978 to 1992 when the Mujahedin took power.
8. The applicant would have been required to have a beard had he lived in Afghanistan as he said he did between October 1996 and May of 2001; however, the only photographs he has of himself with a beard were taken in Pakistan.
9. A student card provided by the applicant had been split alongside the photograph making substitution of a different photograph a possibility.
10. The name of the school on the student card is different from the name of the school the applicant provided on his PIF.
11. The applicant does not resemble the person in the photographs on the student card or dental technician education documents issued in Pakistan.
12. The 1994 taskera and the 1996 driving permit have identical photographs that resemble the applicant.
13. The applicant cited all of his dates in the PIF in terms of the Gregorian calendar.
14. The applicant made gross errors when asked to cite dates at the hearing using the Afghan solar calendar and was unable to explain his difficulty sufficiently.
15. The applicant was unable to name the months under the lunar calendar used by the Taliban while he lived in Afghanistan.
16. The applicant did not indicate on his PIF that he spoke Dari, but said in the hearing that he did speak Dari, suggesting that the applicant changed his evidence to conform with the fact that Dari is taught in Afghanistan schools.
17. An alleged letter from the Swedish Committee for Afghanistan that supports the applicant's story that he worked as a dental technician in Afghanistan says he worked there starting 01/09/1991, but the applicant in his PIF, says he worked there from April 1992, a discrepancy that he was unable to explain to the Board's satisfaction.
18. The Swedish Committee letter did not include any mention of the fact that the applicant allegedly worked in Sharkar, Afghanistan for the first four years of his employment with them, a discrepancy which the applicant was unable to explain to the Board's satisfaction.
19. The applicant testified that his brother obtained the Swedish Committee letter for him in 2001 when his brother returned to Afghanistan to get the applicant's children after the applicant had allegedly fled. When confronted with the fact that the letter was dated 2003, the applicant amended his evidence to suggest his wife's brother obtained the document.
20. The text of an alleged letter from the applicant's wife in which she repeatedly pointed out the names of the three daughters, as if the father would not know this information, was found to be "manifestly self-serving and an embellishment".
Issues
[10] The issues in this case are as follows:
1. Was there a denial of natural justice or fundamental justice because of the poor quality of the interpretation at the applicant's refugee claim hearing?
2. Did the Board err by drawing an adverse inference as to the reliability and trustworthiness of the applicant's taskera?
3. Did the Board err by making its decision without regard to the totality of the evidence before it?
Applicant's Submissions
[11] Issue 1
The applicant submitted that the interpreter at the applicant's hearing was not competent. The interpreter made a significant error in his interpretation. According to the Board's reasons, the translator converted the Afghan calendar month of Hamal 1381 to March 2002. The Board noted that this pre-dated the applicant's own evidence about a significant event by approximately a month as he alleged he returned to Afghanistan in April 2002. In fact, the month of Hamal 1381 equates to the dates from March 21, 2002 until April 21, 2002. The Board relied on the error in interpretation to support the finding that the applicant was not credible.
[12] The applicant submitted that an applicant is entitled to precise and competent interpretation at the refugee hearing (see Mohammdian v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 916 (T.D.)(QL)). Accordingly, the judicial review should be granted due to the interpretation error and the Board's reliance on it.
[13] Issue 2
The applicant submitted that the Board erred in drawing an adverse inference as to the reliability of the of the applicant's taskera. The Board relied on Response to Information Request AFG29678.E to support its finding with respect to the applicant's taskera. The applicant submitted that the Board erred in finding the applicant's taskera to be unreliable based largely on the one document. The applicant submitted that the Board erred in its findings as to differences between the applicant's taskera and the references in the document, specifically in relation to the issues of colour and page numbering.
[14] The Board unjustifiably made an assumption when it decided that the reference to colour in the document "might just mean the colour of the paper over the document", and used that assumption to make a negative finding in regards to the applicant's taskera. The Board erred in finding that the applicant's taskera also differed from the description in the documentary evidence in terms of page numbering.
[15] Contrary to the Board's finding that "the Arabic number of the identity card does not appear on the first page but rather on the second to last page". The applicant submitted that the identity card is a booklet, and is read from right to left and from back to front. Therefore, the number of the applicant's identity card is found at the front and not the back. The Board misconstrued the evidence before it.
[16] The applicant further submitted that at the end of the hearing, the Board retained the applicant's original documents but failed to verify the authenticity of the documents. The Board had a duty to attempt to have the documents verified if they had concerns about their authenticity. It was a breach of fairness for the Board to find the taskera to be unreliable when the Board did not have the document verified by experts.
[17] Issue 3
The applicant submitted that the Board erred in its assessment of the letter provided by the Afghan Association of British Columbia. The Board erred in first stating that the applicant had been unable to establish to the Association's satisfaction that he is a national of Afghanistan, and then immediately thereafter stating that the Association found that Afghanistan is the applicant's country of origin.
[18] The applicant further submitted that the Board misconstrued the evidence in regards to the applicant's driver's permit in stating that while the applicant claimed to have shown the Association his driver's permit, according to his PIF, the document was not yet in his possession in Canada. The applicant submitted that the letter from the Association was dated October 9, 2003 but in his PIF it states that he expected to receive his Afghan driver's permit by October 31, 2002. Therefore, according to the applicant's PIF, he should have had his Afghan permit by the time of his meeting with the Association.
Respondent's Submissions
[19] Issue 1
The respondent submitted that at no time did the applicant or his counsel indicate that the applicant was having difficulty understanding the interpreter or vice versa. In his PIF, the applicant indicated that he speaks English as a second language. If the translation was of such poor quality so as to affect the fairness of the hearing, it seems likely that the applicant would have indicated that fact to his lawyer.
[20] Even if the applicant is correct as to the single translation error as alleged, the Board stated that the letter "further" damages the applicant's credibility, indicating that the applicant's credibility was already damaged.
[21] The respondent submitted that the Board extensively explained in the reasons the evidence it relied upon in coming to the conclusion that the applicant's evidence as to his identification was not sufficiently trustworthy or credible.
[22] The respondent submitted that while the applicant might challenge the inferences drawn by the Board from the documentary and oral evidence, it is not sufficient for him to show on minute factual details that other conclusions could be reasonably reached. The Board had sufficient evidence of credibility concerns with respect to the applicant's identity documents to support the decision. The Board cited many concerns with respect to the internal and external consistencies of the applicant's identification evidence.
[23] The Board was entitled to assess the credibility of the applicant's identification evidence, and to draw adverse inferences based on inconsistencies and implausibilities in his evidence. It is not necessary that each element of the evidence be examined individually; it is sufficient for the Board to make findings on credibility based on the totality of the evidence, so long as that evidence is capable of supporting the decision (see Alibalia v. Canada (Minister of Citizenship and Immigration) 2004 FC 657)
Relevant Statutory Provisions
[24] Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, supra, define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
. . .
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
|
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96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
. . .
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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The standard of review on questions of credibility is patent unreasonableness.
Was there a denial of natural justice or fundamental justice because of the poor quality of the interpretation at the applicant's refugee claim hearing?
The applicant submitted that the interpretation was of a poor quality which resulted in a denial of natural justice. In particular, the applicant submitted that the interpreter made an error in stating that a certain incident took place in the month of Hamal 1381 which the applicant claimed the interpreter translated to mean the month of March 2002. I have reviewed the transcript of the evidence and I am satisfied that the interpreter correctly interpreted Hamal 1381 to be April 2002 and not March 2002. It was the Board that stated that it was March 2002 and because the applicant did not return to Afghanistan until April 2002, the Board found this to be a further reason to find the applicant not to be credible. Although the Board was incorrect on this point, there were many other reasons given by the Board for doubting the applicant's credibility. This is not a sufficient reason to overturn the Board's decision.
Did the Board err by drawing an adverse inference as to the reliability and trustworthiness of the applicant's taskera?
In finding that the applicant's taskera (official identity card) was not genuine, the Board relied on Response to Information Request AFG29678.E (page 48 of the applicant's record), which contained information from a July 1998 report produced by the Danish Immigration Service. The report stated in part:
The taskera is a booklet that has sixteen pages with a paper cover. The cover bears the national symbol of Afghanistan with a text stating the name of the country and the type of document (e.g. an identity card). The first page includes the national symbol of the country, a text and the number of the identity card in arabic, surround by a pink or reddish frame, ages 2, 3 and 4 are blank.
Pages 3 to 7 are pink or reddish where the national symbol is placed in the middle of the pages, except for page 4. The photo of the card holder is placed on page 4. Pages 8 to 16 are white.
. . . Each tazkira has its own serial number.
Both the Taliban and the Northern Alliance issue identity cards. The director could not provided [sic] information on the difference between tazkiras issued by the Taliban and by the Northern Alliance.
The director indicated that differences in the tazkiras reflect changes in governments in Afghanistan between 1973 and 1998. The director could not provide detailed information on all the transformations to the tazkiras since 1973, but added that the main changes affected the colour of the document, the national emblem and the full name of the country.
[28] The applicant submitted that the Board erred in relying upon the response to Information Request noted above in determining that the applicant's taskera was not genuine. The applicant argued that the Board erred in drawing distinctions based upon the issues of page numbering and colour. While the applicant's submissions on those points are plausible, it was equally open to the Board to arrive at the determinations it did in respect of each of those.
[29] Even if the applicant=s submissions are accepted, the Board found another significant problem with the applicant=s taskera, that in and of itself is sufficient to uphold the Board=s determination as to the lack of authenticity of the taskera. The Board noted:
There is also the matter of the full name of the country used by the government that issued the taskera. According to the translation, the claimant=s was issued by the Islamic Republic of Afghanistan. However, the documentary evidence shows that the Mujahedin government headed by President Rabanni (this was the time period during which the applicant claimed the taskera was issued), was proclaimed to be the AIslamic State of Afghanistan.@ Even the claimant ventured this exact information at the hearing. However, the different term used on his taskera is significant since the Taliban later dubbed the country the Islamic Emirate of Afghanistan, and under the new constitution adopted in January 2004, the country is now called the Islamic Republic of Afghanistan. The Refugee Protection Division finds that the full name of the country on the claimant=s putative taskera is not consistent with his evidence that it was issued by the Rabbani government@
[30] Additionally, the Board noted that the national symbol appeared on every page. Accordingly, even if the applicant=s submissions are accepted, in light of the remaining problems with the taskera, the Board=s determination is supportable on the record. The Board noted its concerns about the authenticity of the taskera at the hearing. The applicant has not provided any authority for his submission that the onus is on the Board to have an identity document verified by an expert when it has doubts about the authenticity of the document. To the contrary, Joyal J. held in Culinescu v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 1200 (T.D.)(QL) that there is no duty on the Board to have a document studied by experts when there is sufficient evidence to doubt the authenticity of the document.
Did the Board err by making its decision without regard to the totality of the evidence before it?
The applicant submitted that the Board erred in its assessment of the October 9, 2003 letter provided by the Afghan (Benevolent) Association of British Columbia. The letter referred to the applicant being an Afghan by origin, determined after questioning the applicant. The same letter stated that the Association is open for any individual of Afghan origin residing in B.C.
[32] In document CAN41859.E dated November 21, 2003, containing information from Khair Niru, the president of the Association (also the author of the October 9, 2003 letter), it stated that if the Association is not satisfied with a claimant=s Afghani nationality, they do not accept them for membership in the Association.
[33] It is unclear why the Board determined that there was a difference between nationality and origin based upon the wording in the letter and the document. The letter indicated that the applicant was a member and though it stated that he is an Afghan by origin, according to the document, he would not have been granted membership in the Association if he was not deemed to be of Afghani nationality - according to the Association.
[34] The applicant further submitted that the Board misconstrued the evidence in regards to the applicant=s driver=s licence in stating that while the applicant claimed to have shown the Association his driver=s licence, according to his PIF, the document was not yet in his possession in Canada. The Board did err in that respect as the applicant=s PIF stated that he expected to receive his driver=s licence from his brother by October 31, 2002 which was prior to his meeting with the Association. The applicant claimed he had provided the Association with a copy of the taskera and a copy of his Afghani driver=s licence. The Board stated that it found Aon the balance of probabilities that either the claimant did not actually produce these documents for scrutiny by the Afghan Association or the Afghan Association looked at them and decided they did not establish his Afghan nationality and went on to question him".
[35] Accordingly, the Board does not appear to have placed any specific reliance on the question of whether or not the applicant had the driver=s licence. That the Board was incorrect does not assist the applicant. There is no reviewable error in that respect.
[36] The applicant submitted that the Board's decision can not be upheld because of these errors. I cannot agree. There are many more discrepancies noted by the Board in its decision and excerpted at paragraph 9 of this decision which are sufficient to support the Board's decision.
[37] The application for judicial review is therefore dismissed.
[38] Neither party wished to submit a serious question of general importance for my consideration for certification.
[39] IT IS ORDERED that the application for judicial review is dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7186-04
STYLE OF CAUSE: MOHAMMAD NASEEM SHARIFI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 10, 2005
REASONS FOR ORDER
AND ORDER: O'KEEFE J.
DATED: AUGUST 3, 2005
APPEARANCES:
Mishal Abrahams FOR APPLICANT
Keith Reimer FOR RESPONDENT
SOLICITORS OF RECORD:
Mishal Abrahams
Surrey, British Columbia FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
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