Date: 20080118
Docket: IMM-1345-07
Citation: 2008
FC 68
Ottawa, Ontario, January 18, 2008
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
RIZAYEV Aziz
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Introduction
[1]
The Applicant, Rizayev Aziz, is a
citizen of Turkmenistan who arrived in Canada on October
22, 2004. He claimed protection as a refugee for fear that he would be at risk
if returned to his country of citizenship by reason of two encounters he had
with KNB agents, formerly the KGB, in 1994 and 1995, and by reason of his anti
regime activities while in the United States.
[2]
The Applicant left Turkmenistan in
April 1997 and filed his claim for asylum in the United States on
November 4, 1997. He failed to appear at his refugee hearing in that country
and his claim was subsequently rejected. He remained in the United States for the following six years without status. Following a
failed attempt to have his case re-opened in the United States, an
American Judge ordered him removed.
[3]
In a decision dated March 2, 2007, a
panel of the Immigration and Refugee board, Refugee Protection division (the
Board) rejected the Applicant’s claim, finding that he was neither a
“Convention refugee” nor “a person in need of protection” on the basis that the
Applicant’s claim “lacks any credible basis”.
[4]
The Applicant seeks judicial review of
this decision.
II.
Issues
[5]
The only issue to be addressed is
whether the Board erred in making its credibility findings.
III.
Standard of review
[6]
Assessments of credibility are
“quintessentially findings of fact” and the Refugee Division, as a specialized
tribunal, should be afforded a high degree of deference because it enjoys a
relative advantage of hearing the viva voce evidence and consequently is
in the best position to gauge the credibility of an applicant: Dr. Q. v.
College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226
at para. 38. It is settled law that the appropriate standard for reviewing the
Board’s credibility findings is patent unreasonableness: Aguebor v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 732 (F.C.A.) (QL) at para. 4; (Chowdhury
v. Minister of Citizenship and Immigration, 2006 FC 139 at
para. 12; and Rahman v. Canada (Minister of Citizenship and Immigration),
2006 FC 974 at para. 27.
IV. Analysis
[7]
The Applicant acknowledges both in his written and oral
submissions that there were irregularities with certain aspects of his evidence
in respect to his claim. He nevertheless challenges the Board’s credibility
findings, arguing that it failed to consider all of his explanations and that
it was at times overzealous in looking for inconsistencies. The Applicant
particularly challenges that aspect of the Board’s reasons relating to his
activities while he was in the United States. He argues that the Board failed
to expressly consider the evidence of Mr. Leonid Komarovsky who testified
that while imprisoned in Turkmenistan, he was specifically interrogated about
the Applicant. The Applicant contends that the Board erred by not giving any
probative value to Mr. Komarovsky’s evidence.
[8]
The Respondent contends that the Board did not
ignore or misconstrue the evidence before it and that its credibility findings
were not patently unreasonable. The Respondent further submits that the Board’s
general finding of a lack of credibility on the part of the Applicant may
extend to all relevant evidence emanating from his testimony. In support of
this contention the Respondent relies on Sheikh v. Canada, [1990] F.C.J.
604 (QL). In the Respondent’s submission, it therefore follows that the Board
did not err in affording no probative value to the testimony of the witness,
Mr. Konarovsky.
[9]
The Board’s findings are based on numerous
contradictions, omissions and inconsistencies in the Applicant’s evidence. The
Board found that the Applicant was unable to satisfactorily explain
discrepancies and omissions between his Canadian and American narratives. These
discrepancies and omissions concerned evidence relating to his divorce date,
his conversion to Christianity and baptism date, the attempted rape of his
ex-wife and his encounter with the KNB. Further, the Board found that the
Applicant could not explain why he omitted to mention in his Canadian narrative
his relationship with “Serdar” a good friend of the family, whose father was
the leader of the opposition party in exile. In the Applicant’s own evidence it
was because of Serdar’s killing that he wrote articles in the United States under an alias. These important
facts were reported in the Applicant’s American narrative but omitted in his
Canadian narrative.
[10]
The Board determined that the Applicant invented a
story in order to get a status in Canada and consequently found him “not credible at all”.
[11]
The Board dealt with the documentary evidence
submitted by the Applicant and the evidence of Mr. Konarovsky in the following
manner:
Not having believed
his story and problems, we do not give any probative value to the following
documents: P-34 (different articles), P-35 (first page of letter), R-35 (a)
(two pages of a letter from the Republican Party of Turkmenistan), P-36
(divorce documents), P-37 (certificate of baptism) and P-38 (copy of electronic
mail correspondence. Given all the credibility problems found in this case, we
also do not give probative value to the testimony of the witness Mr.
Komarovsky, who is a friend of the claimant.
[12]
With respect to the evidence of Mr. Konarovsky the
Board, in its reasons, stated: “At the beginning of the first hearing,
we listened carefully to the testimony of Mr. Leonid Komarovsky, a journalist
and citizen of the United States of America. He told us he was a friend of the Claimant.” At the beginning
of its analysis the Board had this to say about the testimony of this witness:
First of all, Mr.
Komarovksy came to give his testimony. He corroborated the fact that the
claimant would have used an alias when writing his articles. He told us that
the relationship with the claimant would have first been a professional one,
then it would have changed into a “friendly relationship”. He told us he had
known the claimant for about five years. However, Mr. Komarovsky was
unable to tell us about the nationality of the claimant, saying: “He’s from
Caucase, but I was never interested in this”. Invited to tell us if the
claimant ever told him he was persecuted because of his nationality, he said:
“I don’t remember if we discussed precisely of that but all people who are not
Turkmen 100% are persecuted”. He himself told us that he was accepted as a
refugee in 1995 in USA based on his
ethnicity, i.e. the fact he was Jewish. We believe that if the claimant had
problems in Turkmenistan because of
his nationality, Mr. Komarovsky would have been aware of that since they were
friends and discussed about the problems the claimant had in Turkemnistan.
[13]
Nowhere in its reasons did the Board make a general
finding about Mr. Komarovsky’s credibility. As indicated above, his evidence
was given no probative value essentially because the Board found the Applicant
not to be credible; it did not believe his story. The Respondent argues that it
was open to the Board to do so and cites Sheikh, above, as authority in
support of the Board’s finding.
[14]
In Sheikh, Mr. Justice MacGuigan, writing
for the Federal Court of Appeal, set out his views in the following terms at
paragraphs 7 and 8 of his reasons:
7 The concept
of “credible evidence” is not, of course the same as that of the credibility of
the applicant, but it is obvious that where the only evidence before a
tribunal linking the applicant to his claim is that of the applicant himself
(in addition, perhaps, to “country reports” from which nothing about the
applicant’s claim can be directly deduced), a tribunal’s perception that he is
not a credible witness effectively amounts to a finding that there is no
credible evidence on which the second-level tribunal could allow his claim.
8 I would add
that in my view, even without disbelieving every word an applicant has uttered,
a first-level panel may reasonably find him so lacking in credibility that it
concludes there is no credible evidence relevant to his claim on which a
second-level panel could uphold that claim. In other words, a general finding
of a lack of credibility on the part of the applicant may conceivably extend
to all relevant evidence emanating from his testimony. Of course, since an
applicant has to establish that all the elements of the definition of
Convention refugee are verified in his case, a first-level panel’s conclusion
that there is no credible basis for any element of his claim is sufficient. [My
emphasis.]
[15]
The Federal Court of Appeal had occasion to apply Sheikh
in Rahaman v. Canada
(Minister of Citizenship and Immigration) [2002] 3 F.C.
537. The Court found that Sheikh does not equate “no credible basis”
with a finding that the claimant’s testimony was not credible. The Board may
not make a “no credible basis” finding if there is credible or trustworthy
evidence before it that is capable of enabling it to uphold the claim, even if,
taking the evidence as a whole, it decides that the claim is not established.
Further, it expressly stated that the Board is to have regard to all the
evidence before it.
[16]
The legal proposition enunciated by Justice
MacGuigan in Sheikh was clearly intended to extend to all evidence
“emanating from the applicant’s testimony” and in circumstances where “the only
evidence” before the Board is that of the Applicant himself. In the
instant case, the evidence of Mr. Komarovsky, arguably does not emanate from
the testimony of the Applicant and the Board made no finding regarding its
credibility. In such circumstances, other legal principles must be considered.
First, as indicated above, a tribunal must have regard to the totality of the
evidence before it in assessing credibility. See Owusu-Ansah v. Canada (MEI),
(1998), 8 Imm. L. R. (2nd) 106 (F.C.A.). This principle is
consistent with the principles and methods for establishing facts set out in
the Handbook on Procedures and Criteria for Determining Refugee Status, issued
by the office of the United Nations High Commissioner for Refugees. Paragraph 199
of the Handbook states in part: “Untrue statements by themselves are not a
reason for refusal of refugee status and it is the examiner’s responsibility to
evaluate such statements in the light of all the circumstances of the case”.
[17]
Second, the more important the evidence that is not
mentioned specifically and analyzed in a tribunal’s reasons, the more willing a
Court may be to infer from the silence that the agency made an erroneous
finding of fact “without regard to the evidence”. Put differently, a tribunal’s
burden of explanation increases with the relevance of the evidence in question
to the disputed facts. See Cepada-Guitierrez v. Canada (MEI), [1998] F.C.J. No 1425 (F.C.T.D.) (QL).
[18]
It is useful to review the evidence of Mr.
Komarovsky which was before the Board. The witness testified that he met the
Applicant approximately five years earlier when they were introduced by a
friend. The witness approached the Applicant to seek his help in securing a
satellite internet provider for Turkmenistan, an area in which the Applicant had expertise. The witness had
explained that the President of Turkmenistan had forbidden the use of internet
in the country. Mr. Komarovsky subsequently succeeded in accessing the service
for himself and other members of the opposition residing in the USA.
[19]
The witness testified that the Applicant
subsequently passed on relevant information critical of the Turkmen government
that he used in his own articles which appeared on three opposition internet
sites. The witness also explained that the Applicant wrote several articles
which appeared on the said sites under different pseudonyms and confirmed that
the Applicant was the author of the articles submitted as Exhibit P-34.
[20]
Mr. Komarovsky further explained that when in 2002
he was arrested while in Turkmenistan
and imprisoned for five months, he was specifically interrogated about the
Applicant. I reproduce below relevant passages of his testimony from the
transcripts of the proceedings:
BY COUNSEL (to witness)
Q. Were you ever interrogated about your involvement in the
opposition?
A. Almost permanently that was exactly what they were doing.
Q. And during these interrogations did they ask you about anyone
in particular?
A. Yes, of course, they asked those question almost every time.
And first of all, they wanted that I would decode for them those surnames that
would be signed those articles. Gundagar and other sites. They was telling me
dozens of family names, dozens photos were shown to me that they wanted me to
recognize one or another person.
Q. Did you recognize any of the names or photos that they may
have shown you?
A. No, I said I didn’t know anyone and I had nothing to do with
those people. Actually I had to say that I was safe because I didn’t admit
anything. Even if I admitted anything, I wouldn’t be sitting here today. All
others they got sentenced for twenty, twenty-five years in prison, even life in
prison. And the people like such people like more than one-thousand.
Q. So do I understand, in fact, did you in reality know some of
the people whose names they showed you or you simply lied to them?
A. Of course, I knew many of them.
Q. And was Mr. Rizayev one of those individuals?
A. Yes.
Q. And what did they ask to know about Mr. Rizayev?
A. Yes. The specific was is there such a person who live in United States and we don’t know that he have
regular meetings with Turkmen people. Also he’s damaging the reputation of the Turkmenistan. Also he had some specials or
articles against the president of Turkmenistan. So such things they were asking about him.
Q. Did they ever explain how they came about this information?
A. Actually those people they never give any explanation. They
actually try to get explanation from you. But it wasn’t difficult to guess. I
believe that among those people who met Aziz and provided him with the
information probably there were some people who used to work for the secret
service from KGB and they actually informed about his doing in United States. But again, it’s just my guess.
Actually their attitude very suspicious to anyone who lives abroad. And the Turkmenistan is one of the few countries who still
exist the meaning of the traitor and also the … that’s all traitor, homeland
traitor.
[21]
Mr. Komarovsky’s evidence, if believed,
corroborates significant elements of the Applicant’s story. In particular, the
evidence establishes that Turkmen authorities are aware of the Applicant’s
activities in the United States and
suspected him of damaging the country’s reputation and of having written
articles against the President of Turkmenistan. The testimony of Mr. Komarovsky
goes to the heart of the Applicant’s claim, namely that he would be at risk if
he returned to Turkmenistan, due, in
part, to his political activities against the regime while in the United States. This evidence squarely contradicts
the Board’s finding.
[22]
In its reasons, the Board fails to deal with Mr.
Komarovsky’s evidence as it relates to his questioning by Turkmen authorities
while imprisoned and the Board makes no reference to the Applicant’s
involvement in securing an internet provider and equipment or in providing Mr.
Komarosvsky with information obtained from his sources which were then used in
articles he published. All of this evidence would serve to corroborate the
Applicant’s claim and point to the opposite conclusion than that reached by the
Board. The Board rejected Mr. Komarovsky’s evidence because “of all the
credibility problems found in this case”. However, the Board made no express
finding regarding Mr. Komarovsky’s credibility. In my view, his testimony was
properly before the Board and should have been expressly dealt with in
assessing the Applicant’s credibility. Given the Board’s silence on this
evidence in its reasons, and its detailed consideration of other evidence
supporting its finding, I am left to conclude that the Board’s general
credibility finding was made without regard to the totality of the evidence.
See Cepeda-Guitierrez, above, at paragraph 17.
[23]
It may well be open to the Board to conclude as it
did, but before doing so it must consider the totality of the evidence before
it; and in the circumstances of this case, it had an obligation to explain with
cogent reasons why it rejected Komarovsky’s evidence. By failing to do so, it
committed a reviewable error.
V. Conclusion
[24]
For the above reasons the within application for
judicial review will be allowed.
VI. Certified
Question
[25]
The parties have had the opportunity to raise a serious question of
general importance as contemplated by paragraph 74(d) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, and have not done so. I
am satisfied that no serious question of general importance arises on this
record. I do not propose to certify a question.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for
judicial review is allowed;
2. The March 2, 2007 decision of the Board is set aside and
the matter is returned to be reconsidered by a differently
constituted panel of the Board in accordance with these reasons; and
3.
No question of general importance is certified.
“Edmond P. Blanchard”
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