Docket: IMM-893-13
Citation: 2013 FC 1025
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Montréal, Quebec, October 10,
2013
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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SHAHID AHMADZAI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Preliminary
[1]
The Refugee Protection Division (RPD) of the
Immigration and Refugee Board (Board) correctly found following a thorough
analysis that the case of the Afghani applicant is one of lack of credibility
with flagrant ambiguity, contradictions and inconsistencies resulting in gaps.
II. Introduction
[2]
This is an application for judicial review of a
decision rendered on January 7, 2013, by the RPD, in which the Board found
that the applicant was not a Convention refugee or a person in need of
protection under section 97 of the Immigration and Refugee Protection
Act, SC 2001, c 27 (IRPA).
III. Facts
[3]
The applicant, Shahid Ahmadzai, is a citizen of
Afghanistan, born in Logar in 1988.
[4]
The applicant stated that at the age of 13 (in
September 2002), his father and his brother were allegedly killed by unknown
murderers in Logar and that the applicant and his mother and brother went to
live with his uncle in Kabul shortly after the incident.
[5]
The applicant explained that in 2002 and 2003,
unknown persons allegedly followed him in Kabul on two occasions. He believes
that these unknown persons are the same ones that killed some members of his
family. He stated that they also knocked on his door frequently and threw rocks
at his windows during the night.
[6]
The applicant stated that he arrived in Canada
on September 21, 2009, and filed his refugee claim on September 23, 2009. Since
the applicant had no identification documents in his possession at the time of
his application, the Canada Border Services Agency (CBSA) immediately detained
him.
[7]
On October 27, 2009, after three detention
reviews, the applicant testified before the Immigration Division (ID) of the
Board that his real name was “Aimal Wafa”. The applicant testified that he
changed his name because of his fear of murderers targeting members of his
family to be able to play for the national cricket team in Afghanistan. (This
admission only arose after a CBSA offer asked him if he was one of the members
of the cricket team that had recently fled Afghanistan and had claimed refugee
status in Canada.) The applicant also testified that he lied with respect to
his age and itinerary (see hearing transcript of October 27, 2009).
[8]
On November 10, 2009, the applicant was released
by the CBSA because it was satisfied as to his identity.
[9]
On January 7, 2013, the RPD rejected the
applicant's refugee claim.
IV. Decision
under judicial review
[10]
In its decision, the RPD determined that Mr.
Ahmadzai's version of the facts was not credible.
[11]
The RPD found that there were several
inconsistencies in his story for which no satisfactory explanation was
provided. The RPD felt that the following elements undermined the applicant's
credibility with respect to his fear of his family members’ murderers:
a)
First, the applicant could not at all explain
satisfactorily why he had stated in his port of entry statement that he feared
being killed by the Taliban, after indicating that he feared [translation] “unknown” persons in his
Personal Information Form (PIF) and his testimony. The applicant also could not
explain why he was the only member of his family living to be targeted by these
unknown persons. Further, he did not provide any evidence to confirm that his
father and brother had indeed been killed;
b)
Second, the applicant had not indicated in his
original PIF or amended PIF that he had complained to the police in Kabul after
being followed by unknown persons. On the contrary, in his original PIF, he
stated that he had not gone to the police since they were all connected to the Taliban.
In his amended PIF, the applicant did not say anything about his complaint. The
applicant only stated that he complained to the police when he filed his
documentary evidence for the hearing of January 7, 2013.
[12]
Regarding the applicant’s fear of the government
of Afghanistan because of his refugee claim in Canada, the RPD found that the
applicant was also not credible.
[13]
First, the RPD determined that the applicant’s
allegation that he had to change his name to Aimal Wafa in 2005 because he
allegedly was afraid to be discovered by the Taliban was implausible, since none
of the other members of his family living in Afghanistan were troubled by these
unknown persons and had wanted to change their names. Given the concerns relating
to the applicant’s credibility, the RPD gave little weight to his explanation relating
to his name change.
[14]
Similarly, the RPD found there was no connection
between the applicant and Aimal Wafa; the applicant had not submitted any credible
evidence that he was Aimal Wafa. The RPD noted that the only similarity between
the applicant and Aimal Wafa was that the two were cricket players and arrived
in Canada around the same date.
[15]
The RPD added that, even if it had believed that
the applicant was indeed Aimal Wafa, there was no evidence on the record that
showed an objective basis of risk that the applicant would be persecuted by the
government of Afghanistan. The RPD found that it was implausible that the applicant
would be persecuted by that government for deserting his sports team in claiming
refugee status in Canada.
V. Issue
[16]
Was the RPD’s credibility analysis reasonable?
VI. Relevant
statutory provisions
[17]
Sections 96 and 97 of the IRPA apply in this
case:
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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.
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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.
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VII. Standard
of review
[18]
A decision relating to credibility should be
reviewed on a standard of reasonableness. As a trial court, the RPD is the best
placed to assess the credibility of an applicant (Aguebor v Canada (Minister
of Employment and Immigration) (1993), 160 NR 315 (FCA)).
[19]
When the standard of reasonableness applies, the
Court may only intervene if the RPD’s reasons are not “justified, transparent
or intelligible”. To satisfy this standard, the decision must also fall within
the “range of possible, acceptable outcomes which are defensible in respect of
the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190, at para 47).
VIII. Position
of the parties
[20]
The applicant alleges that the Board erred in
its assessment of his credibility by neglecting to consider the documents on
the record. The applicant also argued that the RPD did not assess and analyze
his specific circumstances if he were to return to Afghanistan.
[21]
The respondent argued that the RPD’s decision is
detailed and clearly explains the reasons for which they did not believe the applicant’s
allegations. The respondent argued that the applicant did not show behaviour
compatible with someone who fears for his life and that the RPD acted reasonably
in finding that the applicant was not credible.
IX. Analysis
[22]
The only issue is whether the RPD’s finding is reasonable
in relation to the applicant’s fear of the government of Afghanistan because of
his refugee claim. The applicant did not seem to dispute the RPD’s other findings,
specifically in relation to his fear of the Taliban.
[23]
It is well established that the RPD’s findings affecting
issues of credibility and the assessment of evidence are entitled to great
deference (Blanquez v Canada (Minister of Citizenship and Immigration),
2011 FC 566; Serrato v Canada (Minister of Citizenship and Immigration),
2009 FC 176).
[24]
Therefore, the reasons given by the RPD must not
be subjected to a [translation] “microscopic”
examination by the Court. The RPD must also not obliged to refer to each piece
of evidence before it that is contrary to the findings of fact and explain how
it dealt with this evidence (Cepeda-Gutierrez v Canada (Minister of Citizenship
and Immigration) (1998), 157 FTR 35, at para 16).
[25]
In this case, the applicant alleges mainly that the
RPD neglected to support its reasons with the evidence in the record. After
reviewing the record, the Court cannot agree with this statement.
[26]
The RPD took into account all the evidence
available to it and all the explanations provided by the applicant with respect
to his identity; including the three newspaper articles to which the applicant refers
in his memorandum. However, the RPD determined that the applicant’s version of
the facts lacked credibility and that the objective evidence submitted did not
demonstrate connections between the applicant and Aimal Wafa.
[27]
Essentially, the applicant was not able to present
persuasive evidence to the RPD that he is indeed Aimal Wafa. The connection
between him and Mr. Wafa is too tenuous. While he had photographic evidence of
a person called Aimal Wafa in the record, it was not clear. This shows a
significant gap, a space without an answer. Thus, the RPD was not able to determine
whether the person resembled the applicant sufficiently to make a link between
the two. This assessment of the evidence was completely reasonable.
[28]
It was understandable that the applicant disagreed
with the analysis conducted by the RPD. However, the Court cannot substitute
its opinion to that of the RPD. The RPD had the benefit of seeing and hearing
the applicant; thus, it is in the best position to assess the probative value
of any evidence produced by the applicant (Cepeda-Gutierrez, above). Insofar
as its assessment is reasonable, the Court cannot intervene in the RPD’s
decision.
[29]
The RPD’s decision, taken as a whole, falls
within the range of possible acceptable outcomes of the evidence before the RPD.
The Court did not note any reviewable error in the RPD’s findings. The RPD’s
reasons are clear, detailed and weighed. In addition, the Court found that the
RPD considered the applicant’s specific circumstances if he were to return to
Afghanistan. It is clear that the RPD assessed the applicant’s particular
situation relating to the fear of the government of Afghanistan.
[30]
Following the evidence in the record that the
RPD had before it and on which it was not obliged to comment (Cepeda-Gutierrez,
above; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62, (2011) 3 SCR 708; Alberta (Information and
Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61,
[2011] 3 S.C.R. 654), the Court also noted that there were key inconsistencies in
the central elements in the applicant's story. For example, the applicant’s original
PIF indicates that he had only been educated at home but his amended PIF and
his testimony shows that he was educated at “King’s Hall Public School” in Peshewar,
Pakistan, from 1999-2003 and then at “Said Nour Mohammed Shah Mind” in Kabul,
Afghanistan, from 2003-2009. The Court finds it difficult to see how the applicant
could have forgotten to leave the country during his years of education. His friendships
are also specified based on the story of the fear he alleged against the
government of Afghanistan.
[31]
The applicant was thus not in Logar when some
members of his family were allegedly killed or in Kabul when, according to one
of the versions, he was followed by unknown persons in 2002, because he was in
Pakistan until 2003. These facts show that a part of
an experience in the applicant’s stated story or his second PIF has no inherent
logic. This means that it was a very different path than what was given in the applicant’s
second account. Given the numerous significant discrepancies in the evidence in
his record, the applicant does not seem to be able to provide a consistent account
of his past experiences, even under name of Shahid Ahmadzai.
[32]
Significant gaps in the core of the applicant’s
story as a result of the two contradictory versions in addition to the false names
in the record gives weight to courts other than the RPD. The Court entirely
agrees with the RPD’s non-credibility findings.
X. Conclusion
[33]
For all the foregoing reasons, the application
for judicial review is dismissed.
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