Date: 20100106
Docket: IMM-1556-09
Citation: 2010 FC 15
Ottawa, Ontario, this 6th
day of January 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Mohammed
Shabir WAZEEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, (the “Act”) of a decision of
the Refugee Protection Division of the Immigration and Refugee Board of Canada (the
“Board”) dated March 6, 2009, wherein Board Member Michal Mivasair found the
applicant to be neither a “Convention refugee” nor a “person in need of
protection” pursuant to section 96 and subsection 97(1) of the Act.
* * * * * * *
*
[2]
Mr.
Mohammed
Shabir Wazeen (the “applicant”) is a twenty-seven year old citizen of
Afghanistan who came to Canada from Afghanistan via Pakistan and then the
United States of America (the “U.S.”).
[3]
He
was born in 1981 in a village in Kunduz province. Most of the alleged facts on
which the applicant bases his claim for refugee protection were not accepted by
the Board.
[4]
The
applicant alleged that in 1990 he and his family fled Afghanistan for Pakistan. They
returned in early 2002 after the fall of the Taliban. In March 2002, the
applicant met and fell in love with Yasamin Hashmi. They became romantically
involved and planned to eventually marry. However, before their respective
families could be approached about the arrangement, Yasamin’s family arranged
to have her marry another man. Fearing that Yasamin would be killed by her
husband when he found out that she was no longer a virgin, the applicant and
Yasamin ran away together. They were found and attacked by unknown assailants,
likely members of Yasamin’s family. The applicant escaped to his uncle’s house
in Kabul but Yasamin
did not. He learned that police and armed men had forced their way into his
family home that day and taken away his brothers.
[5]
Thus,
a consequence of the failed attempt by Yasamin and the applicant to run away
together was that the applicant’s family became targeted by Yasamin’s family.
Yasamin’s relatives include Abul Rauf, the most powerful Uzbek commander in
Kunduz and his brother Amir Latif, the current Provincial Governor in Faryab
and the former Provincial Governor of Kunduz. As retribution for dishonouring
Yasamin, the applicant’s uncle negotiated for the release of the applicant’s
two brothers. One brother remains missing to this day. The applicant’s family
eventually fled their village fearing further more deadly targeting from
Yasamin’s family.
[6]
The
applicant fled from Afghanistan to Pakistan where arrangements were
made to further distance himself from Yasamin’s family. His family arranged to
have him marry his U.S. cousin. He used the passport of his deceased
cousin, Adel Qayoumi, to obtain a U.S. fiancé visa. The
processing took some time and he claims he was in hiding from late 2003 and
most of 2004. Implicitly, the applicant alleges that Yasamin’s family had the
power and the intent to threaten the applicant’s life even while in Pakistan.
[7]
In
October 2004 the applicant arrived in the U.S. His marriage
to his cousin was short lived; they separated in June 2005 and divorced in
2006. Ultimately, he did not obtain his green card and was advised by lawyers
that he would never obtain a regularized status as a refugee because of the
short duration of the marriage and the fact that he had used an alias since his
arrival.
[8]
The
claimant decided to come to Canada through the assistance of an agent. He
arrived on July 4, 2006 and filed for refugee protection on July 7, 2006.
[9]
The
applicant claims to have no knowledge of Yasamin’s whereabouts today although
she may be living near Tajikistan. The applicant claims to
fear the family members of Yasamin, in particular the two brothers mentioned
above.
[10]
The
applicant’s first interview by a Canadian Immigration Officer was August 4,
2006 in Montréal,
Quebec. At some
point his identity was questioned and investigations were conducted by the U.S.
Immigration authorities as well as by the Canada Border Services Agency
(“CBSA”). He was detained at the Laval Detention Centre for over a month. A
number of interviews were conducted and he signed a statement on August 21,
2006 confirming that he had made previous false declarations to the U.S. and Canadian
authorities regarding his identity.
[11]
On
September 13, 2006, Immigration and Refugee Board Member Michel Beauchamp
rendered a decision that the applicant remain in the detention centre in Laval, Quebec. At
some point thereafter, the applicant’s identity was confirmed and he was
released.
[12]
A
hearing to determine whether the applicant was eligible for refugee protection
was held on February 26, 2009 in Edmonton, Alberta.
* * * * * * *
*
[13]
The
Board found
that the applicant was not a Convention refugee because he did not sufficiently
demonstrate a well-founded fear of persecution. Further, the Board found that
the applicant was not a person in need of protection as there were no grounds
to believe that his removal to Afghanistan would subject him to cruel and unusual punishment.
[14]
Neither
the applicant’s identity nor his citizenship status was doubted by the Board.
[15]
However,
the Board did not believe the applicant’s testimony because his demeanour was
“flat and irritable” and it could not tell if the applicant was sad when
speaking of Yasamin and his missing brother who was “most likely murdered by
her family.” Furthermore, the applicant seemed to resent and was annoyed for
being asked questions about his life. The Board member opined that: “I was not
in the presence of someone who wanted me to understand his claim.”
[16]
The
Board rejected the applicant’s submission that he be found credible on the
basis that he had not contradicted himself during his testimony. More important
for the Board was the applicant’s admitted pattern of lying in the past. The
Board concluded that this pattern of lying to the U.S. authorities, to the
Immigration Officer when he landed in Canada, and to CBSA at the detention
centre convinced the Board that it was not in a position to determine whether
inconsistencies or omissions from the applicant’s Personal Information Form
(“PIF”) as well as explanations provided during the testimony were truthful or
further lies: “I find that the claimant lies whenever he finds it convenient.”
[17]
The
Board also appears to have made a finding against credibility because the
applicant was willing to use his deceased cousin’s passport to enter the U.S. This demonstrated that
the applicant was willing to perpetrate fraud.
[18]
There
are two aspects of the applicant’s story that the Board found unreasonable for
a person who claims to have a subjective fear for his life. The first aspect of
the claimant’s unreasonableness, according to the Board, was his assertion he
could have married Yasamin and that both families would have accepted the
marriage. It was objectively an implausible arrangement according to the Board.
[19]
The
second aspect of the applicant’s claim that the Board found to be unreasonable
was his decision not to pursue additional avenues to regularize his status in
the U.S.: “Anyone who believed that his death was certain if he were to return
to Afghanistan would not have been
cavalier with his legal status in the United States.” For instance, the Board suggests that
the applicant should not have been so willing to accept a divorce from his wife
since he knew it would put his residency status in jeopardy. The Board further
found the applicant unreasonable for not calling a lawyer as soon as he
received his divorce papers from his wife. This is because the applicant knew
of the negative consequences of a divorce to his status in the U.S.
[20]
The
Board explained that the applicant should have been looking for ways to remain
in the U.S. from the time he and
his wife separated, before they were officially divorced in February 2006. The
Board states at paragraph 32:
.
. . What exactly was the claimant doing for thirteen months after he split up
with his wife? How could he not be solely focused on finding a plan for
staying away from Afghanistan, the place he would allegedly face certain death,
even if it took Yasamin’s extended family “50 years” to find him in some dusty
corner of Afghanistan. . . .
[21]
This
failure to act was further problematic for the Board member because of the
applicant’s fluency in English and his alleged bachelor degree in physics. His
level of education was the basis for the Board’s expectation that the applicant
should have researched the process of claiming refugee status in the U.S. and
potential other countries like Canada. This expectation would not be placed on “the average
person, thrust into a foreign culture”.
[22]
The
applicant filed two sets of amendments to his PIF and made some changes at the
outset of the hearing. However, he appears to have omitted to mention on his
PIF that his mother and brother still live in fear of the alleged agent of
persecution. The PIF includes the fact that the applicant’s family left Kundiz
but it does not mention that, as the Board characterized, his mother and
brothers live in Afghanistan in “an ongoing migratory existence due to their
fear of Yasamin’s family”.
[23]
Thus,
the Board member found that there was no credible or trustworthy evidence
presented in support of the applicant’s claim for refugee protection pursuant
to section 96 or 97 of the Act.
* * * * * * * *
[24]
The
basis of the Board’s decision to refuse the applicant’s refugee claim is
credibility. The applicant merely challenges the Board’s findings of
credibility and in so doing, acknowledges that such findings are entitled to a
high level of deference and that the standard of review is reasonableness (Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
[25]
The
applicant first submits that the Board made erroneous findings with respect
to his credibility by an inaccurate and otherwise skewed analysis of his
demeanour. The applicant asserts that he was not asked how he felt about the
loss of his brother and Yasamin yet the Board made a finding against his
credibility on the basis that he did not seem to have a sad demeanour. The
Board is entitled to make such an observation.
[26]
Overall,
the applicant alleges that the Board made capricious findings with regard to
the applicant’s demeanour because his emotion did not match the stereotype of a
refugee expected by the Board. The respondent rightly points out that there is
no allegation of an apprehension of bias on the part of the Board. Demeanour is
clearly a factor that the Board is entitled to consider when evaluating the
credibility of an applicant’s overall testimony (Zheng v. Minister of
Citizenship and Immigration, 2007 FC 673, at paragraph 17). Certainly, the
Board is in the best position to gauge the quality of the viva voce
evidence presented during the hearing (Takhar v. Canada, [1999] F.C.J.
No. 240 (QL) (T.D.)).
[27]
Interestingly,
the applicant suggests that his irritated demeanour stems from the way in which
the hearing was conducted rather than the substance of the questions. This Court
must defer to the tribunal on this point. It is not in a position to evaluate
this claim.
[28]
The
applicant further submits that the Board belittled the role of the consistency
of the applicant’s testimony and erroneously found that the applicant simply
reiterated the allegations in his PIF. In fact, upon review of the transcript
it is clear that the applicant testified at length on a wide variety of issues
not limited to what was in his PIF. Ultimately, consistency is, along with
demeanour, one of the various factors that a Board may consider when
determining credibility. In my opinion, it was not unreasonable to state that
the consistency of testimony is not sufficient to find the applicant credible.
[29]
The
applicant’s further submissions are targeted towards the Board’s findings of
misapprehension of the evidence, omission from the PIF, patterned lying and
implausible relationship with Yasamin. In spite of the applicant’s counsel able
presentation, I am not satisfied, upon reviewing the evidence, that the
inferences drawn by the Board are so unreasonable as to warrant the
intervention of the Court. In Aguebor v. Canada (M.E.I.) (1993), 160
N.R. 315, the Federal Court of Appeal found that with regard to plausibility of
a claimant’s testimony, the unreasonableness of a decision may be more palpable:
[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. . . .
[30]
Furthermore,
it is trite law that this Court ought not substitute its own appreciation of
the facts to that made by an administrative tribunal when, like in the present
case, the Court cannot conclude, without minutely dissecting the reasons
provided by the Board, which would be inappropriate, that the latter based its
decision on an erroneous finding of fact that it made in a perverse or
capricious manner or without regard for the material before it (Federal
Courts Act, paragraph 18.1(4)(d)).
[31]
In
conclusion, without necessarily endorsing the Board’s analysis of the facts in
its entirety, I am of the opinion that the above demeanour, inconsistencies, implausibilities
and omissions, taken as a whole, could allow the Board to conclude as it did.
* * * * * * *
*
[32]
For
all the above reasons, the intervention of the Court is not warranted and the
application for judicial review is dismissed.
JUDGMENT
The application for judicial
review of the decision of the Refugee Protection Division of the Immigration
and Refugee Board of Canada dated March 6, 2009 is dismissed.
“Yvon
Pinard”
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