Date: 20021016
Docket: IMM-1857-02
Neutral citation: 2002 FCT 1077
Ottawa, Ontario, this 16th of October, 2002
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
FATIN ANWAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review, pursuant to s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, of a decision of the Convention Refugee Determination Division ("CRDD") dated April 3, 2002, denying the applicant as a Convention refugee.
ISSUE
[2] Did the CRDD err in determining that the applicant was not a Convention refugee?
[3] For the following reasons, this application should be allowed.
FACTS
[4] The applicant is a citizen of Iraq; she was born in that country in 1981. She is a member of an ethnic group known as Turkoman.
[5] The applicant arrived in Canada on May 17, 2000. According to her Personal Information Form ("PIF"), she left Iraq on May 8, 2000, travelling to Turkey by boat and on foot before boarding a plane in Turkey on May 17, 2000, passing in transit through another country which she cannot identify, before reaching Pearson International Airport in Toronto.
[6] The applicant filed a narrative in support of her PIF. In it, she states that her brother, Baher, deserted from the Iraqi army in September 1997, leaving the country in March 1998. The family received no news from him since then. In the meantime, authorities would come to her home over the course of a three-month period. During their visits, their house was searched and the applicant and her parents were assaulted and were questioned about her brother.
[7] At her school, it was known that her brother had deserted the army and fled the country. She was pressured to join the students' union, an offshoot of the Ba'ath Party. Her refusal to do so led to additional harassment on top of that generated by her brother's actions.
[8] The applicant was later accused of distributing literature denouncing the regime in power, and of being involved with a secret Turkoman opposition party. She denied these allegations.
[9] In January 1999, the Mukhabarat arrested the applicant and took her to their headquarters where she was physically tortured and where the allegations described above were repeated. She denied the allegations and was released after a week. She was arrested, beaten and interrogated on three other occasions in 1999.
[10] On March 12, 2000, she was arrested for a fifth time, during which she was held for three weeks and threatened with rape. After her release, she went into hiding. When her father accumulated sufficient savings in May 2000, he arranged for a smuggler to take her to Turkey, where another smuggler assisted her in completing the journey to Canada.
DECISION OF THE CRDD
[11] The Immigration and Refugee Board ("IRB") heard the applicant's claim on January 15, 2002, and released its decision on March 19, 2002.
[12] In the seven-page statement of its reasons, the two-member panel explained its conclusion that the claimant's version of events was neither plausible nor credible, and that her fear of persecution was not well founded.
[13] The panel found it implausible that the authorities would not act against the claimant before March 1999, eighteen months after her brother's desertion. It also had a problem with the idea that the authorities would come after her, despite the fact that she is seven years younger than her brother, but would not take similar action against her father, notwithstanding that in 1999, he was sixty-one years old. The panel does not believe that Iraqi authorities are any less aggressive against elderly persons who they believe have information on anti-government activities, such as desertion.
[14] The panel did not find it plausible that the applicant would continue going to school after four arrests, and did not believe her explanation that she did not want to lose time from school, and that she felt that, while she had done nothing wrong, staying home might send the message that she had.
[15] After the fifth arrest, she had gone into hiding. The panel essentially found her conduct and that of her family after each of the first four arrests to be inconsistent with a well-founded fear of persecution. The panel figured that the applicant would have been sent into hiding after one of those arrests, which also led to periods of detention during which physical pain was inflicted. At page 4 of the reasons (Applicant's Record, page 10), the panel stated:
[...] We further do not find it to be the behaviour of someone with a well-founded fear of persecution.
[16] The panel also did not believe that the applicant would be released on several occasions only to be re-arrested for more questioning (Applicant's Record, page 10):
[...] This is a regime that deals with the problem of overcrowded prisons by resorting to executions [footnote omitted]. We have no credible evidence before us that subtle torture is a habit of theirs.
[17] The panel reiterated its issue with the idea that the applicant only chose to go into hiding after the fifth arrest, knowing all along that whenever females are detained, there is a high risk of rape at the hands of Iraqi authorities.
[18] The panel then expressed its view that Canada was not the least expensive destination that the applicant could have chosen in her quest to escape from Iraqi authorities. It found that it was not plausible that for lack of a friend or relative in a safe haven other than Canada, she remained in Iraq, vulnerable to the alleged harm.
[19] The panel also did not believe that students at her school were suspicious of her because she did not cave into pressure to join the Ba'ath Party. The panel referred to the documentary evidence that the Ba'ath Party required character and ideological purity and found that the applicant lacked these qualities because of the allegations of her brother's desertion.
[20] The panel also found it implausible that the applicant would be arrested and re-arrested given her inability to provide information about the distribution of pamphlets or the activities of any Turkoman political movement.
[21] The CRDD panel concluded that it was implausible that the fifth arrest would trigger the applicant's departure from Iraq, more than two years after her brother's desertion, and reiterated that it had a hard time believing that she would be arrested, released and re-arrested with the frequency she alleged.
SUBMISSIONS
Applicant
[22] The applicant submits that the panel erroneously discounted the plausibility of the applicant's evidence based on the arbitrary and brutal nature of the Iraqi government, without making any findings based on contradictions or demeanour.
Benefit of the Doubt
[23] The CRDD did not even mention this principle. No documents exist among the documentary evidence which specifically contradict the allegations of the applicant; therefore, the principle should have been applied. The principle was applied in the Handbook on Procedures and Criteria for Determining Refugee Status ("Handbook") produced by the United Nations High Commission on Refugees ("UNHCR").
[24] Essentially, if the applicant's evidence is consistent with the documentary evidence, then the applicant is entitled to the benefit of the doubt with respect to the elements that the applicant has not been able to provide. The approach recommended by the Handbook was accepted by the Supreme Court of Canada in Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593.
[25] In the case at bar, the claimant's evidence was not contradicted by documentary evidence. The CRDD found, based on inferences from the documentary evidence, that the applicant's statements were implausible. The CRDD erred in not applying the benefit of the doubt principle. It may have arrived at the same result, but was required at a minimum to consider the principle.
Hypotheticals
[26] The CRDD erred in refusing the applicant's claim after comparing it to hypotheses. This argument builds on those advanced under her claims that she should have been given the benefit of the doubt.
Misconstruction of the applicant's claim
[27] When the panel found that the fifth arrest was not plausible because it came two years after the brother's desertion, it misconstrued the claim. The applicant was not only being detained in connection with her brother's desertion; her own evidence states otherwise. Specifically, she herself was being suspected of subversive acts and involvement in an opposition party.
[28] The remainder of the applicant's main set of submissions addresses the implausibility findings of the CRDD. The applicant notes that in Nebea v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 106, [1998] F.C.J. No. 1168 (F.C.T.D.) (QL), this Court noted that findings with respect to plausibility are not within the exclusive domain of the discretion of the trier of fact. Such findings therefore receive less deference on judicial review than those findings which are findings of fact which the CRDD is in the best position to evaluate.
[29] The CRDD erred in simply rejecting the evidence of the applicant based on its view that it is implausible that she would continue going to school after each of the arrests. The applicant's insistence on attending school in the face of danger is akin to having a deeply felt political opinion. This Court stated in Samani v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1178 (F.C.T.D.) (QL), that an action is not necessarily implausible just because it is dangerous for a politically committed person.
[30] With respect to the subtle nature of Iraqi torture, there is no evidence indicating that there is no "subtle" torture, and that it was an error to classify the allegations of the applicant as being "subtle" persecution. The documentary evidence speaks of psychological torture, and this evidence is contradictory to the findings of the panel, therefore rendering those findings patently unreasonable.
[31] The CRDD erred in finding that it was not plausible that the family of the applicant would be quiescent, or not acting, during the period in which the first four arrests were made. As the applicant stated, it was the threat of rape uttered during the fifth arrest that precipitated efforts to get the applicant out of Iraq. In addition, the family members are third parties who are not before the CRDD; it was thus an error for the panel to base a finding on their alleged state of mind.
[32] The CRDD admitted that it had no evidence with respect to the prices charged by smugglers for their services. It was therefore an error to speculate that it would have been less expensive for the claimant to flee to a country other than Canada.
[33] Another error on the part of the panel was its assumption that those who are arrested and detained are always held for long periods and that murders are routinely performed to reduce overcrowding, such that the applicant's evidence of capture and release was not plausible. There is no documentary evidence to contradict the Applicant.
[34] The documentary evidence also does not contradict the applicant with respect to the pressure that was placed on her to join the Ba'ath Party. The documentary evidence does not contradict the applicant. The conclusion that she would not have had the required character and purity to join because of the actions of her brother was a leap of logic that the panel was not justified in making.
[35] The applicant also submits that the panel erred in finding that her arrests were not plausible. It was an error to presume that it was not plausible that she would be re-arrested despite pleading to her captors ignorance of the matters on which she was questioned, or that it was not plausible that her fifth arrest would take place, given that two years had elapsed since the desertion of her brother from the army.
Respondent
[36] The counsel for the respondent summarizes her submissions as follows:
a) The findings of the panel regarding credibility and plausibility were reasonably open to it on the record;
b) The CRDD did not base its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it;
c) The CRDD did not err in law in determining that the applicant is not a convention refugee;
d) There is no evidence to suggest that the CRDD refused to consider any evidence, or that it ignored evidence, or that it made an erroneous finding;
[37] The respondent cites Pushpanathan v. Canada (Minister of Citizenship and Immigration, [1998] 1 S.C.R. 982, and Chen v. Canada (Minister of Citizenship and Immigration (1999), 49 Imm. L.R. (2d) 161 (F.C.A.); [1999] F.C.J. No. 551 (F.C.A.) (QL), in support of her submissions that a patently unreasonable standard of review applies.
[38] The applicant has misunderstood the holding of the Supreme Court of Canada in Chan, with respect to the benefit of the doubt principle. It does not mean that the applicant's oral evidence must necessarily be accepted as true; it refers to the relaxation of rules of evidence; s. 68(3) of the Immigration Act (the "Act") already codifies the principle.
[39] The panel did not make up its own hypotheses and use those as bases for rejecting the claim. The applicant in fact fails to identify the hypotheses that she alleged.
[40] The CRDD reasonably construed the basis for the applicant's claim. Her relationship to her brother, a deserter, is only one of the claims that the panel acknowledged.
[41] Contrary to the submissions of the applicant, this Court is not less deferential with respect to implausibility findings. The ruling of the Federal Court of Appeal in Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.); [1992] F.C.J. No. 481 (F.C.A.) (QL), did not set a different test for judicial intervention depending on whether the issue is "plausibility" or "credibility". Rather, this specialized tribunal has complete jurisdiction to consider the plausibility of the testimony before it.
[42] The findings of the refugee division with respect to the credibility of the applicant were not patently unreasonable, and were supported and clear and unmistakable reasons. The situation in which the panel is placed puts it in the best position to make evaluations with respect to credibility, and the Court should therefore be reluctant to intervene (see Aguebor v. Canada (Minister of Employment and Immigration), (1993) 160 N.R. 315 (F.C.A.)).
[43] It is proper and reasonable for a panel to decide adversely with respect to a claimant's credibility based on contradictions or inconsistencies or on the basis of implausibility.
[44] A finding of lack of credibility by the CRDD based on problems internal to the applicant's testimony is in the heartland of the discretion of triers of fact. Where the CRDD makes such findings, this Court should not interfere.
ANALYSIS
[45] It is accepted that CRDD panel members are generally in the best position to judge the credibility of the claimants who appear before them. This is reflected in such decisions of the Federal Court of Appeal as Leung v. Canada (Minister of Citizenship and Immigration, [1993] F.C.J. No. 685 (F.C.A.) (QL) and Aguebor, supra). As Décary J.A. noted in Aguebor, at paragraph 4:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. [...] [emphasis added]
[46] However, this Court retains an overall discretion and duty to oversee the decisions of the CRDD and ensure that they are rendered within the applicable standard. The cases cited above suggest a deferential standard. However, even cases examined in light of this deferential standard are subject to review if the conclusions to which the panel came are not justified by the record that is before the Court.
[47] This Court, given the written record, which includes a transcript of what was said at the CRDD hearing, is not at a vast disadvantage with respect to evaluating the conclusions that the panel draws from the evidence received at those hearings. Although the Court does not review the record in order to draw its own conclusions and substitute those conclusions for those at which the panel arrived, the Court nonetheless has a role to play in evaluating the conclusions of the CRDD and the route which the panel took to reach those conclusions. It is with these considerations in mind that the findings of the panel are examined below.
[48] The analysis of the panel with respect to the arrests of the claimant and her subsequent conduct merits our discussion. The panel did not find the conduct of the applicant and her family during the period of the first four arrests plausible. Such a finding was stated and explained throughout the reasons of the panel.
[49] In my view, however, the panel considered the plausibility of their conduct during this period with undue hindsight. Looking back at the relevant period, we see four arrests in succession in 1999. That the claimant continued going to school after each of the first four arrests, rather than remaining at home, was a factor that led the panel to conclude that the version of events advanced by the applicant was implausible.
[50] However, the record, including the transcript of the hearing, indicates that the applicant was acting on a belief that she did nothing wrong and that, accordingly, she should not have to change the way in which she led her life. In Samani, supra, Hugessen J. stated at paragraph 4:
[...] It is never particularly persuasive to say that an action is implausible simple because it may be dangerous for a politically committed person.
[51] I am hesitant to adopt entirely the submission of the applicant that her attendance at school should be assimilated to the conduct of a politically committed person. However, I accept the line of reasoning advanced by Hugessen J. that the conduct to which an applicant testifies is not implausible for the simple reason that it was risky from the vantage point of a CRDD panel - or a court undertaking judicial review - with a full record before it. Without engaging in speculation of the same nature which led the panel astray in this case, I cannot imagine that the documentary or other evidence on the record would require a finding that the applicant had no reason to believe, or at least hope, that after the first period of detention, during which she denied knowledge of what was being alleged, that would be the end of her problems with the authorities.
[52] The panel noted that her first three detention periods were one week, two days and five days, respectively, and that between May 1999 and March 2000, she had not been arrested. It was not implausible for her to believe, during that period, that the worst for her may have been over; nor was it implausible that, despite such assaults on her physical integrity, such as electric shocks, beatings and being doused with cold water, it took the threat to her sexual integrity to serve as the impetus for her to go into hiding. The conclusions reached by the panel in this regard are unreasonable as they are not justified by the record before me.
[53] The panel's assertion that other destinations existed to which the claimant could have fled which would have been less expensive than Canada is based on assumptions that are not supported by the record. The panel admitted, at page 5 of its reasons, that it had no evidence with respect to the prices charged by smugglers in Iraq for their services.
[54] The panel's statements that the applicant could have spent less had she retained a smuggler to take her to Europe is flawed. It assumes that, to the extent that the price of a ticket aboard any means of transportation to a European destination is lower than that of a ticket to Canada, that difference in price would be reflected in a lower fee charged by the smuggler. The panel therefore jumped to an unwarranted conclusion in this case, and its decision is unreasonable on its face to the extent that this consideration was a factor in its plausibility findings. I consider that all of the panel's reasons on this has no relevance on the applicant's claim.
[55] The panel also gave undue weight to the actions of the family of the applicant. The panel held that the applicant's testimony of pressure to join the Ba'ath party was implausible given that her brother's desertion from the military compromised her character and ideological purity such that she would be disqualified from joining. In fact, the documentary evidence does not suggest that the actions of a family member would reflect on one's own character and purity in that manner. The conclusion of the panel is therefore unjustified given the evidence before it.
[56] The panel's arguably excessive focus on the brother of the applicant was reflected in its reasons. The CRDD panel found it not to be plausible that the applicant would be targeted but not her father. Perhaps in connection with the desertion of her brother, the authorities could have targeted the father of the applicant and her brother, but it is not the applicant's father who was suspected of being involved with a Turkoman opposition party or participating in the production of anti-regime literature. With all due respect, this point seems to have been lost on the panel.
[57] Similarly, the following statement was made at page 2 of the reasons:
What the panel finds implausible in the claim before us is that the authorities would wait until March of 1999 to so deal with the claimant given that her brother allegedly deserted some eighteen months earlier. [...]
[58] This statement may lead the reader to believe that the disappearance of the brother was the primary motivation for the arrests of the applicant. It is true that March 1999 was well over a year after her brother's desertion, but March 1999 also happens to fall in the period during which the applicant was accused of political activities of her own doing. To compare the timing of her arrests with the timing of her brother's desertion ignores one of the alleged reasons for her persecution and is an error on its face.
[59] The alleged quiescence of members of the family of the applicant is another factor that was erroneously considered in determining the plausibility of the applicant. The family of the applicant did not appear before the panel; therefore, they are not parties to this claim and their actions or inactions should have been given considerably less weight than they ended up receiving. In addition, as noted above, we know now that there were a total of five arrests, but it was uncertain during that period if the third or fourth arrest was going to be the last one. It should also be considered that fear of the regime, whose actions cannot be predicted as the same level of rationality that can be expected elsewhere seems not to be present in Iraq, prevented the family from acting as it did sooner. In the same vein, that fear of retaliation for hiding and escape may not have been outweighed by the desire to risk escape until the threats of sexual assault were made. These considerations are neither tangential nor ancillary, and ought to have been taken into account by the panel.
[60] In her further Memorandum of Argument, the applicant proposes the following question for certification:
"Is the benefit of the doubt as set out in the UNHCR Handbook paragraph 203 a principle of the law that the Refugee Division is required to consider in relation to the assessment of a refugee claim being determined by the Refugee Division?"
[61] The respondent does not agree that the Court should certify this question. After an analysis of the Chan decision, in particular paragraphs 137 and 142, I agree with Lutfy, A.C.J. in Nduwimana v. Canada (Minister of Citizenship and Immigration), 2002 FCT 812, paragraph 18:
Similarly, the applicant's reliance on Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, in support of its argument that the panel, in the circumstances, was required to give the applicant the benefit of the doubt, is misplaced. I accept the respondent's submissions that the passages in Chan relied upon by the applicant, in particular paragraphs 137 and 142, do no more than repeat the principle that the Refugee Division can be guided by informal rules of evidence: subsection 68(3) of the Immigration Act [emphasis added].
[62] Given the unreasonable nature of the findings of fact, I will not certify the proposed question.
[63] For all these reasons, this application for judicial review is allowed. The decision of the CRDD is quashed and the matter is referred back to a differently constituted panel of the CRDD for a new hearing. No question of serious general importance will be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed. The decision of the CRDD is quashed and the matter is referred back to a differently constituted panel of the CRDD for a new hearing.
2. No question of serious general importance will be certified.
_________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1857-02
STYLE OF CAUSE : FATIN ANWAR and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING : October 2, 2002
REASONS FOR ORDER : THE HONOURABLE JUSTICE BEAUDRY
DATED : October 16, 2002
APPEARANCES :
Michael Crane FOR THE APPLICANT
Neeta Logsetty
Department of Justice FOR THE RESPONDENT
SOLICITORS OF RECORD :
Michael Crane FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
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