Khan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 400

                                                                                                                                            Date: 20020410

                                                                                                                                 Docket: IMM-427-01

                                                                                                               Neutral Citation: 2002 FCT 400

Ottawa, Ontario, this 10^th day of April, 2002

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                                      AMJAD KHAN

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

NATURE OF PROCEEDINGS

[1]                 This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") dated December 10, 2000, which held that the applicant was not a Convention refugee.

FACTS

[2]                 The applicant is a 23 year old citizen of Afghanistan and a member of the Gadoon tribe. The _applicant speaks Pashtu and is from Kunar, a province on the border with Northern Pakistan.

[3]                 The applicant's evidence is that his father was affiliated with the Islami Group, the main rival to the Communist who were in Power. The applicant's father died fighting the Communist and the Russians in May 1992.

[4]                 The applicant states that later, when fighting erupted between the Taliban and the Islami Group, his brother was killed on June 26, 1997, and most of his relatives were either killed in the fighting or captured and detained by the Taliban.

[5]                 The applicant's father and brother were fighters for Hezb-i-Islami, a Pashtun Mujahedin group which was led by Gul Badin Hikmetyr of the Islami Group.

[6]                 As a child, the applicant was disabled by polio and, as a result, was unable to fight the Taliban nor was he able to continue to hide and survive in the hilly terrain and caves of Afghanistan. In April 1998 his mother took him to an Afghan refugee camp in Pakistan.

[7]                 In June of 1998, finding the conditions at the refugee camp in Pakistan unbearable, the applicant's evidence is that he returned with his mother to Afghanistan, again to live in caves in the mountains with other relatives.

[8]                 The applicant states that, throughout this time, he continued to live in fear of dying at the hands of the Taliban.

[9]                 The applicant, with the help of a smuggling agent, was eventually able to travel to Canada. He left Afghanistan on April 15, 1999, and travelled through Pakistan, London England and eventually arrived in Canada on June 5, 1999, at which time he claimed refugee status in Toronto.

[10]            The applicant bases his claim to Convention refugee status on membership in a particular social group, the family. He claims that his family's longstanding affiliation with the Islami Group, the fact that his brother fiercely opposed the Taliban and was eventually killed by the Taliban, causes him to fear persecution and likely death if returned to Afghanistan.

CRDD'S DECISION

[11]            The CRDD found that there was not a serious possibility that the applicant would face persecution for a Convention ground should he return to Afghanistan. In coming to this conclusion, the tribunal gave five reasons:

(i)            There was no corroboratory documentary evidence that the Taliban was targeting Gadoons or Hezb-i-Islami supporters in Kunar.

                                 (ii)           The Applicant's family members did not hold leadership roles in the Hezb-i-Islami military structure.

                                 (iii)          The Applicant was not sought out while he was in Afghanistan.

                                 (iv)          The Applicant was able to acquire an Afghan passport without any difficulty from embassy officials.

                                 (v)           The Applicant travelled in and out of Afghanistan with his Afghan passport and encountered no problems.

[12]            The CRDD did, however, find the applicant to be credible and at page 5 of its reasons concluded as follows:

The claimant is a young man with a disability who faces a bleak future in Afghanistan. He was fully cooperative with the Refugee Division and as indicated above, we found him to be credible. While he does not come within the Convention definition, there may be compelling humanitarian and compassionate grounds to enable him to regularize his status in Canada. However, this is not within our jurisdiction to decide.

ISSUES

1.          Did the CRDD err in its assessment of the documentary evidence in support of the refugee claim?

2.          Did the CRDD err in failing to properly consider the applicant's disability?

ANALYSIS

[13]            In an attempt to counter an information request stating that the existence of a Gadoon tribe could not be confirmed in Afghanistan, the applicant obtained a letter from the Afghan Association of Ontario stating that he was a member of the Gadoon tribe and that the Gadoon people have a political opinion contrary to the Taliban. In response to questions from the CRDD, the applicant stated that he was provided this letter after a thirty minute interview. The CRDD accepted that the applicant was a member of the Gadoon tribe, but gave little weight to the letter as it was based on a cursory interview.

[14]            The applicant's main argument in this judicial review is that the CRDD erred in assessing little weight to the letter from the Afghan Association of Ontario. The applicant essentially argues that the fact that the aforesaid letter was provided to the applicant after a "very cursory interview" did not provide a sufficient and/or reasonable basis for the panel to assign the letter little weight. The applicant states that this is particularly so in light of the panel's findings that the applicant indeed belonged to the Gadoon tribe, and that he was credible.

[15]            The applicant further contends that since the CRDD observed in its reasons that its information request was not conclusive on the issue of the existence of the Gadoon tribe in Afghanistan, it could be inferred from this that the CRDD could not rely on its own documentary evidence. Consequently, it was unreasonable not to give more weight to the letter since it was then the only reliable evidence before the CRDD on this issue. The letter in question states in part the following:

This is to inform and confirm that we the Afghan community in Toronto possess thorough geographical and segregated clan knowledge of Afghanistan.

I hereby confirm that:

1.     The tribe known by the name of Gadoon does exist in Afghanistan.

2.     Concerning popularity ratio: it is a minority tribe.

3.     The Gadoon people have their political opinion contrary to Taliban.

4.     Mr. Amjad Khan belongs to Gadoon Tribe from his backhome.

[16]            The letter does not provide evidence which indicates, or would lead one to conclude, that members of the Gadoon tribe were targeted by the Taliban. In fact, there is a complete absence of objective evidence before the CRDD suggesting that the Taliban were targeting members of the Gadoon Tribe. In my view, it was not unreasonable for the CRDD in the circumstances of this case to consider, as one of the many factors in assessing the well-foundedness of the applicant's fear, this absence of objective evidence. The CRDD did accept and indeed confirmed in its reasons, that it accepted most of what was advanced in the letter. It simply decided to give the letter little weight in assessing the well-foundedness of the applicant's claim, and in my view it was open to the CRDD to do so.

[17]            While there is no legal requirement to produce corroborative evidence, it was not unreasonable in the particular circumstances of this case for the CRDD to consider, as one of the several factors in assessing the well-foundedness of the applicant's fear, the complete absence of any evidence suggesting that the Taliban were targeting members of the Gadoon tribe. I believe the statement of Mr. Justice Hugessen in Adu v. Canada (M.E.I.), [1995] F.C.J. No. 114 (C.A.), online: QL (FCJ) is applicable to the circumstances of this case:

The "presumption" that an Applicant's sworn testimony is true is always rebuttable, and in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention. (Emphasis added).

[18]            The jurisprudence of this Court has clearly established that it is within the specialized jurisdiction of the CRDD to decide how much weight to assign to the evidence. It is also well established that the CRDD is entitled to rely on documentary evidence in preference to the testimony provided by a claimant. Furthermore, the tribunal is also entitled to give more weight to the documentary evidence, even if it finds the applicant to be trustworthy and credible. [Zhou v. Canada (M.E.I.), [1994] F.C.J. No. 1087 (F.C.A.) online: QL].

[19]            It is useful to reproduce the comments of my colleague Mr. Justice MacKay in Pehtereva v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 200. At paragraphs 12 and 15 of that case, Mr. Justice MacKay stated:

...Reliance upon such sources cannot be characterized as error; even if the newspaper articles submitted by the applicant provided examples indirectly supportive of the applicant's claim, for it is trite law that the weight to be assigned to given documents or other evidence is a matter for the tribunal concerned. Even if the reviewing court might have assigned different weight or reached other conclusions that provides no basis for the reviewing court to intervene where it is not established that the tribunal has been perverse or capricious or its conclusions are not reasonably supported by the evidence. I am not persuaded that the tribunal's conclusions can be so classified in this case.

...

Assessing the weight to be given to evidence, including that of an expert, is a matter for determination by the tribunal that hears it. Only in a most extraordinary case would a court on judicial review intervene because of the weight assigned by the tribunal to evidence. Only where it is clear on review that the tribunal acted unreasonably, and in relation to evidence upon which its findings were found to be perverse, would a reviewing court intervene. These circumstances are not here established. Rather, it seems clear the tribunal assessed the evidence of the witness in question and determined that it would be given little weight, for reasons it made clear. The evidence of a person introduced as an expert is not entitled automatically to acceptance. Whether or not it is given credence, and the weight to be assigned to it, will depend upon its relevance and general consistency with other evidence, presented to the tribunal." [Emphasis mine.]

[20]            I am of the view that the CRDD' decision to give little weight to the letter from the Afghan Association of Ontario was not perverse or capricious and that its conclusion is reasonably supported by the evidence. On this issue, no reviewable error was committed.

[21]            The applicant further submits that the CRDD's finding that the applicant's fear of the Taliban was not well-founded on the grounds that his father and his brother did not hold high positions with the Hezb-i-Islami's military structure, and were now deceased , was patently unreasonable in light of the documentary evidence. Again, this is a question of weighing evidence and the CRDD is entitled to weigh and give preference to the documentary evidence. It is also for the tribunal, in weighing the evidence, to determine its cogency and reliability. [Vankalwala v. Canada (M.E.I.) [1994] F.C.J. 1273 at para. 5, online: QL.] I am of the view that the CRDD's conclusion on this issue was reasonably supported by the evidence and not perverse or capricious. There is no basis to warrant the intervention of this Court.

[22]            The appellant also contends that the CRDD erred in failing to consider the applicant's disability in the context of the plight of the disabled in Afghanistan. I am of the view that this argument cannot be sustained. In its reasons, the CRDD indicated that, "...we have considered whether the claimant is a member of a particular social group, the disabled." The CRDD also considered documentation from the United States Department of State, on this issue before concluding that the disabled in Afghanistan, do not appear to be targeted by the Taliban. I am of the view that this conclusion by the CRDD was also reasonably open to it.

[23]            For the above reasons, this application for judicial review will be dismissed.

[24]            The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.

                                                                            ORDER

THIS COURT ORDERS that:

1.         This application for judicial review of a decision of the Convention Refugee Determination Division and Refugee Board dated December 10, 2000 is dismissed.

                                                                                                                                "Edmond P. Blanchard"                    

                                                                                                                                                               Judge