Docket: IMM-2178-98
BETWEEN:
AHMAD SHAH SAYAR
Applicant
-and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division (CRDD) that the applicant Ahmad Shah Sayar is not a Convention refugee. The applicant is a citizen of Afghanistan and claims to fear persecution in both Afghanistan and Slovakia.
[2] The applicant entered Canada in August of 1996. At that time he claimed to fear persecution in Afghanistan.
Page: 2 [3] According to the applicant's personal information form dated October 7, 1996, and the narrative attached to it, he was born in Afghanistan in 1967. He served in the military from 1985 until he was discharged in 1987. He was then accepted to the Faculty of Medicine at Kabul University where he studied for one year.
[4] In 1989 the applicant went to Czechoslovakia, having been granted a scholarship from the government of Afghanistan to enable him to continue his studies. He commenced his studies at the Faculty of Pharmacy at Cominus University in Bratislava, which was then part of Czechoslovakia but became part of Slovakia in 1993. He graduated in May of 1995 with a diploma that apparently is the equivalent of a masters degree in pharmacy.
[5] After the applicant's graduation in 1995, his scholarship ran out and he could not continue his education. He went to work at a pharmacy in Bratislava. He worked full time from June until December of 1995, when he returned to Afghanistan because his mother was ill. He says that he found the situation in Afghanistan to be dangerous to him because of his connections with the former government of that country. He fled to Pakistan, and from there to Canada.
[6] The applicant's personal information form states that he had not previously been granted refugee status. The narrative attached to the personal information form says that after 1995 he could not return to Slovakia because his education was complete. That statement
Page: 3 gives the impression that the applicant was permitted to remain in Slovakia from 1989 to
1995 only because he was a student during that time.
[7] In fact, the applicant had been granted status as a Convention refugee in Slovakia on November 29, 1994. He admitted at the CRDD hearing that he was aware that Slovakia had granted his refugee claim. When asked why his personal information form stated that he had never been granted refugee status, he said that the agent who smuggled him from Pakistan to Canada advised him that if he answered that question truthfully, he would be returned to Slovakia.
[8] It also appears that the applicant has always been free to return to Slovakia. A letter
from an official of the Embassy of the Slovak Republic that was faxed to the applicant's
counsel on September 10, 1997, reads in part as follows:
... in accordance with the Refugee Act of 1997, a person who has obtained a refugee status in the Slovak Republic, has obtained the same status as a citizen of the Slovak Republic. That means Mr. Sayar Ahmed Shah has the right for permanent residence in the SlovakRepublic, he has the right to return to the Slovak Republic at this time and in the future and his Permanent Residence Permit in the Slovak Republic can be renewed anytime.
[9] The applicant claimed at the CRDD hearing that this information came as a surprise to him when he received it in September of 1997, because in August of 1996, while he was in Pakistan, he had been advised by somone at the Slovakian Embassy in Islamabad that he had no right to return to Slovakia. The applicant was unable to identify the person who gave him this information, except to say that it was given to him by telephone by a person who must have been a person in authority because it took so long to be connected with him.
Page: 4 [10] Once the applicant's status in Slovakia came to light, the applicant added a claim for refugee status because of fear of persecution in Slovakia at the hands of "skinheads" against whom the Slovakian authorities were no protection. He submitted a second narrative dated November 12, 1997, setting out the basis of that claim.
[11] The CRDD dealt only with the applicant's claim against Slovakia and rejected it. The
decision is summarized as follows at page 3 of the reasons for decision:
There is no credible or trustworthy evidence upon which to base a positive determination on the claim for Convention refugee status by Mr. Ahmad Shah Sayar. It is the finding of the panel that the claimant, after having successfully obtained international refugee protection in Slovakia, is attempting to resettle in Canadaby making a refugee claim. The refugees who have secured protection in any of the signatory countries are free to resettle in any other country for economic reasons or for whatever reason, if they so choose. The matter then becomes one of immigration and has nothing to do with refugee international protection.
[12] The main reason for the failure of the applicant's claim against Slovakia was that he
was found not to be credible. I can find no error in the negative assessment of his credibility.
[13] The CRDD was heavily influenced by the applicant's initial untruthful statements about his refugee status in Slovakia. Their concern in this regard was justified because of the importance of that fact to the validity of his claim against Afghanistan. The CRDD found it implausible that a well educated person like the applicant would be misled by advice received over the telephone from the Slovakian Embassy in Islamabad, or that he would rely on the advice of the smuggler to lie about his status in Slovakia even after having access to counsel in Canada. They concluded that he deliberately concealed his refugee status in Slovakia so that only his claim against Afghanistan would be considered. I see nothing unreasonable in their stated reasons for disbelieving him.
[14] Nor was it unreasonable for the CRDD to use that conclusion as a basis for finding the remainder of the applicant's evidence to be an untrustworthy basis for his claim against
Page: 5 Slovakia. The CRDD apparently accepted as true his stories of being attacked in Slovakia on several occasions. However, they did not accept that the applicant had established that the attacks were anything more than random attacks and acts of crime, rather than attacks motivated by any perception of the applicant as being a member of a particular group. That is a conclusion that was open to them on the record.
[15] Counsel for the applicant argued that the CRDD disregarded the evidence of an objective witness, a Slovakian woman who was acquainted with the applicant. She testified that in her experience, Slovakian "skinheads" attack gypsies and others who are dark skinned, dark haired and do not physically resemble Slovaks, and that to her knowledge the police do not take action in such cases. She also testified that she had never heard of a skinhead being arrested for any reason. It is true that the CRDD did not mention her evidence. However, it does not follow that it was disregarded. The CRDD committed no error in attaching little or no weight to it.
[16] Counsel for the applicant also argued that the CRDD erred in misstating the applicant's claim against Slovakia. The CRDD characterized his claim as being based on a fear of persecution by reason of membership in a particular social group consisting of persons "perceived as gypsies." In fact, his claim describes the group as persons who are "perceived to be gypsies or are dark skinned foreigners." The applicant's evidence does attribute the attacks on himself and others of his acquaintance to being members of that larger group. However, I cannot attach any important to this apparent narrowing of the class. If the reasons for decision had correctly described the class, the decision of the CRDD would have been the same, given its other conclusions.
[17] The CRDD made no finding as to whether or not the applicant has a well founded fear of persecution in Afghanistan. Counsel for the applicant suggested that this indicated that the CRDD accepted that there is such a fear. I do not agree that the CRDD accepted that or even considered the point. Rather, it appears to me that the CRDD concluded that the applicant cannot claim to be a refugee in Canada vis-a-vis Afghanistan, even if he has a well founded
Page: 6 fear of persecution there, because of his unfettered right to return to Slovakia and the fact that he has the same status as a citizen of that country.
[18] That seems to me to be correct. With respect to the applicant's claim against Afghanistan, the applicant falls within the words of Section E of Article 1 of the United Nations Convention Relating to the Status of Refugees, which reads as follows:
This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
[19] This provision is incorporated by reference into the definition of "Convention refugee" in the Immigration Act, so that anyone who meets this description is by definition not a "Convention refugee" within the meaning of the Immigration Act, as regards any country other than the country in which he has the rights described in Section E.
[20] In this case, that is sufficient to dispose of the applicant's claim with respect to Afghanistan. His claim against Slovakia is not affected by Section E of Article 1 of the Convention, but it failed for other reasons, referred to above.
[21] Accordingly, the application for judicial review will be dismissed. No order will be issued until consideration is given to a certified question.
[22] Counsel for the applicant may make submissions on the matter of a certified question, to be filed and served by April 16, 1999. Any response by counsel for the respondent will be filed and served on or before April 21, 1999.
Karen R. Sharlow
Judge
Ottawa, Ontario April 6, 1999
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2178-98
STYLE OF CAUSE: AHMAD SHAH SAYAR v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 4, 1999REASONS FOR ORDER OF Madame Justice Sharlow DATED: April 6, 1999
APPEARANCES
Mr. Rodney L.H. Woolf FOR THE APPLICANT
Mr. David Tyndale FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Rodney L.H. Woolf FOR THE APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada
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