Date: 20080624
Docket: IMM-5106-07
Citation: 2008
FC 772
Ottawa, Ontario, June 24, 2008
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
NAHID SAHIL
RITA SAHIL
MILAD SAHIL
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
made pursuant to section 72 of the Immigration and Refugee Protection Act,
S.C. 2001 c. 27 (“Act”) for judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (“the Board”) dated
November 8, 2007 (“the Decision”) in which Nahid Sahil (“the Principal
Applicant”) and her two minor children, Rita Sahil and Milad Sahil (“the minor
Applicants”) were determined not to be Convention refugees or persons in need
of protection.
BACKGROUND
[2]
The
Applicants are citizens of Afghanistan. The Principal
Applicant claims that in 2004 her father-in-law arranged for her thirteen year
old daughter, Rita Sahil (“the minor female Applicant”), to marry his
thirty-five year old cousin. The Principal Applicant’s husband did not agree
with his father’s plans for his daughter and rejected the idea. A long dispute
ensued and, in March 2005, the Principal Applicant’s husband disappeared. She
claims to have contacted the police on several occasions regarding his
whereabouts but he is apparently still missing and has not been heard from
since the dispute with his father.
[3]
On
May 6, 2006 the older male cousin went to the Applicants’ family home to marry
the minor female Applicant (“the incident”), albeit the fact that she was
opposed to the marriage. As a reaction, the minor female Applicant attempted to
set fire to herself and, during the incident, she was also grabbed by the hair
and thrown by her grandfather. In the course of the incident, her body struck a
knife that was lying on the kitchen counter from which she sustained injuries.
The older male cousin was outraged that she would not wed him and he opened
fire in the home with his gun. A family member was hit in the leg by a bullet.
The minor female Applicant spent nine days in the hospital as a result of her
injuries. The uncle-in-law offered to help the Applicants leave Afghanistan for
Peshawar, Pakistan following
which, with the help of an agent, they would leave for Canada.
[4]
The
Applicants left Afghanistan on August 17, 2006 and arrived in Canada on September
1, 2006. Four days later, they filed a claim for refugee status in Canada. The Refugee
claim was based on the allegations that the minor female Applicant’s
grandfather had arranged for her to marry his older male cousin; that the
Principal Applicant’s husband had gone missing following the dispute with his
father regarding the marriage; and because the Principal Applicant fears her
father-in-law as a result of her not obeying Afghani traditions.
DECISION UNDER REVIEW
[5]
The
determinative issue in this claim was credibility. The Board found that the
Principal Applicant and the minor Applicants were not Convention Refugees or
persons in need of protection because they lacked a well-founded fear of
persecution. Essentially the Board rejected the claims made by the Applicants
on the basis that they were not credible with regard to the material elements
of their claim. In its decision, the Board made several implausibility
findings; namely, that medical documents presented by the Principal Applicant
contradicted her testimony and were created “to put forth a refugee claim”.
Consequently, the Principal Applicant failed to establish that the incident
giving rise to her claim actually occurred.
[6]
The
Board noted a number of implausibilities from the Principal Applicant’s
testimony, such as the fact that the older male cousin did not pursue the minor
female Applicant after the incident. The Board also found it implausible that
the Applicants did not have copies of their birth or marriage certificates and
that the Principal Applicant did not have a copy of the police reports she
filed with regard to her missing husband. Finally, the Board found it
implausible that the Applicants would not have any means of contacting the
uncle-in-law that arranged for their travels to Canada, at least in
order to find out the whereabouts of the Principal Applicant’s husband.
[7]
Lastly,
the Board addressed the conditions in Afghanistan and it was noted that
people do in fact leave that country and seek refugee protection elsewhere for
a variety of reasons, notably due to armed conflict. However, the refugee claim
was not based on the armed conflict, but rather on the alleged forced marriage
of the minor female Applicant.
RELEVANT LEGISLATION
Immigration and Refugee Protection Act, S.C.
2001, c. 27
|
Convention refugee
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
(b) not having a
country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
Person in need of protection
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.
Person in need of protection
(2) A person in Canada who is
a member of a class of persons prescribed by the regulations as being in need
of protection is also a person in need of protection.
Exclusion — Refugee
Convention
|
Définition de «
réfugié »
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;
b) soit, si elle n’a pas de nationalité et
se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
Personne à
protéger
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.
Personne à
protéger
(2) A également
qualité de personne à protéger la personne qui se trouve au Canada et fait
partie d’une catégorie de personnes auxquelles est reconnu par règlement le
besoin de protection.
Exclusion par
application de la Convention sur les réfugiés
|
ISSUES
[8]
In
their submissions, the Applicants raised a series of issues. These issues can
be summarized as follows:
1. Was the Board
Member biased in her assessment of the Applicants claim for Refugee Status?
2. Did the Board err in finding that the Applicant was not
credible by drawing unreasonable inferences with regard to the Applicants’
evidence?
STANDARD OF REVIEW
[9]
The Supreme Court of Canada’s decision in Dunsmuir v. New
Brunswick, 2009 SCC 8, established that correctness and reasonableness
are the two standards to be applied on judicial review, collapsing
reasonableness simpliciter and patent unreasonableness into one
standard, that being reasonableness. However, Dunsmuir did not
address the question of the application of paragraph 18.1(4)(d) of the Federal
Courts Act, R.S.C., 1985, c. F-7, as it did not arise in that case.
[10]
There
has been general consensus that this Court may provide relief on judicial
review if it finds that the Board’s findings of fact with regard to credibility
or plausibility were made in a perverse or capricious manner, or without regard
to the material before it (Soto v. Canada (Minister of Citizenship and
Immigration), 2008 FC 354). In particular, findings of fact related to an objective
or subjective basis of fear of persecution or serious harm due to a lack of
credibility in pivotal areas of an applicant’s testimony along with a lack of
credible documentary evidence, are issues that ought to be examined against a
standard such as that of paragraph 18.1(4)(d) of the Federal Courts
Act, above, since it turns entirely on a review of the Board’s weighing of
the evidence before it, in which the Board has considerable expertise (Miheret
Teku Jego v. Canada (Minister of Citizenship and Immigration), 2008 FC 441).
[2] Therefore
this Court will not interfere with the Board’s findings of fact unless they
were found to be made in a perverse or capricious manner without regard to the
evidence.
ANALYSIS
1. Was the Board
Member biased in her assessment of the Applicants claim for Refugee Status?
[11]
The
Applicants allege that the Board Member who heard their case has rejected 100%
of the Afghan refugee claims she heard in 2006 and 2007 – that is to say twelve
claims all represented by the same counsel, Paul Dineen – whereas the National
acceptance rate of Afghan refugees claimants in 2006 was 94% and in 2007 was
79%. The Applicants submit that any informed person would think that it is
unlikely that he or she would receive a fair hearing before this particular
Board Member and thus, there is a reasonable apprehension of bias.
[12]
The
Respondent submits that the Applicants failed to raise the issue of reasonable
apprehension of bias during the hearing and that the failure to do so
forecloses the possibility of raising the issue before this Court (Darabos
et al v. Canada (Minister of Citizenship and Immigration), 2008 FC
484). Given that Mr. Dineen had appeared before this Board Member numerous
times and in each of those instances his Afghan claimants were unsuccessful,
there was a reasonable expectation for him to raise the issue of bias at the
outset of the hearing. He did not do so. However, should the Applicants be
allowed to make the argument at this stage, the Respondent notes that the
burden is clearly on the Applicants to establish that the Board Member refused
their claim and the other cases represented by their counsel due to a
reasonable apprehension of bias (Darabos, above at para.16).
[13]
In
Bulut v. Canada (Minister of Citizenship and Immigration), 2005 FC 1627,
a similar allegation with regard to a reasonable apprehension of bias was made
based on a Board Member’s acceptance and rejection rate of Turkish refugee
claims. In that case, the Applicant made an access to information and privacy
request and submitted the documents he received as evidence of a reasonable
apprehension of bias. In Bulut, Justice Hughes dismissed the application
for judicial review and held the following at paragraph 10:
The numbers alone as
presented by the Applicants are meaningless without an informed analysis as to
what they mean and whether a reasonable conclusion can, as a result, be drawn
from them. Here there was no attempt to provide an analysis as to what lay
behind the numbers and what reasonable inferences and conclusions can be drawn.
It would be reasonable to expect, especially upon judicial review, to find
expert evidence to be filed in this regard. There was none.
[14]
In
the case at bar, the Applicants have not pointed to any actual instances of
bias on the part of the Board Member and thus rely solely on the acceptance and
rejection percentages to base their claim that there is a reasonable
apprehension of bias. There is no evidence that the Board Member acted in a
biased manner. Further, in the present case as in Bulut, above, the
Applicants have not made any attempt to break down and analyze the figures they
seek to rely on to support their allegation of a reasonable apprehension of
bias. I am satisfied that without any such analysis or breakdown of the
percentages and statistics, the Applicants have failed to meet their burden and
consequently, this Court cannot conclude that there was a reasonable
apprehension of bias on the part of the Board Member toward the Applicants in
her assessment of the claim.
2. Did the Board err
in finding that the Applicant was not credible by drawing unreasonable
inferences with regard to the Applicants’ evidence?
[15]
The
Applicants argue that the Board made a reviewable error when it determined the
Principal Applicant and the evidence put before the Board was not credible.
The Applicant notes that when an applicant swears to tell the truth, there is a
presumption that those allegations are true unless there is reason to doubt
them (Maldonado v. M.E.I., [1980] 2 F.C. 302 (F.C.A.)).
[16]
To
the contrary, the Respondent suggests that the Board’s credibility findings
were entirely open to it because the evidence presented by the Applicants was
inconsistent with the Principal Applicant’s testimony. The Respondent
specifically highlights the medical letter that stated that the minor female
Applicant was born in 2006 whereas the Principal Applicant testified that she
was born in 1991. Further, the name of the hospital on the letter and the name
given by the Principal Applicant in her testimony were inconsistent. Lastly,
the Board noted that the description of the injuries suffered by the minor
female Applicant was not in “medical terms” and that the medical letter was
given to the Applicants by an agent in Canada upon their
arrival. It is not a document they brought with them from Afghanistan.
[17]
The
law with regard to the weighing of evidence before a tribunal such as the Board
has long been settled. This Court may only interfere in the weighing of the
evidence if the tribunal based its decision on an erroneous finding of fact that
it made in a perverse or capricious manner or without regard for the material
that was before it (Bielecki v. Canada (Minister of Citizenship and
Immigration), 2008 FC 442 at para. 22; Aguebor v.
Ministre de l’Emploi et de l’Immigration (1993), 160 N.R. 315 (F.C.A.)).
[18]
As
was highlighted in the Respondent’s Further Memorandum of Fact and Law, Justice
Noël, in Ogiriki v. Canada (Minister of Citizenship and Immigration),
2006 FC 342 at paragraph 11, quoted the words of Justice Nadon in
Hamid v. Canada, [1995] F.C.J. No.1293 at para. 21, wherein Justice
Nadon held:
Once a Board, as the
present Board did, comes to the conclusion that an applicant is not credible,
in most cases, it will necessarily follow that the Board will not give that
applicant's documents much probative value, unless the applicant has been able
to prove satisfactorily that the documents in question are truly genuine. In
the present case, the Board was not satisfied with the applicant's proof and
refused to give the documents at issue any probative value. Put another way,
where the Board is of the view, like here, that the applicant is not credible,
it will not be sufficient for the applicant to file a document and affirm that
it is genuine and that the information contained therein is true. Some form of
corroboration or independent proof will be required to "offset" the
Board's negative conclusion on credibility.
[19]
Essentially
the Applicants’ claims in the case at bar have been discredited by a number of
internal contradictions and inconsistencies both by their lack of corroborating
evidence and the Principal Applicant’s testimony. Given that the Principal
Applicant’s only piece of corroborating evidence was the medical letter that
contained a number of contradictions, it was not unreasonable for the Board to
find it not credible.
[20]
The
Board then turned to the fact that the Applicants did not possess any other
documentation to support their claim. Given that the Board did not find the
claim to be credible, it was open to the Board to ask for corroborating
evidence if the evidence would have reasonably been expected to be available to
the Applicants (Reyes v. Canada (Minister of
Citizenship and Immigration), 2005 FC 418 at para. 22). No such
evidence was provided; in fact it was precisely the lack of evidence that lead
the Board to its conclusion.
[21]
Consequently,
against a standard of reasonableness, I do not find that the Board’s
credibility findings were made in a perverse or capricious manner without
regard to the evidence before it. Rather the Applicants have failed to adduce
evidence to suggest that the Board erred in its assessment of their claim.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that this application for judicial review is dismissed. No question was
submitted for certification.
"Max M. Teitelbaum"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5106-07
STYLE OF CAUSE: Nahid
SAHIL, Rita SAHIL, Milad SAHIL v. The Minister of Citizenship and
Immigration
PLACE OF
HEARING: Toronto, Otnario
DATE OF
HEARING: June
11, 2008
REASONS FOR JUDGMENT: TEITELBAUM
D.J.
DATED: June
24, 2008
APPEARANCES:
|
Paul Dineen
|
FOR THE APPLICANTS
|
|
Rhonda Marquis
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Chapnick &
Associates
Toronto, Ontario
|
FOR THE APPLICANTS
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
Email this Content