Docket: IMM-4596-13
Citation:
2015 FC 487
Ottawa, Ontario, April 17, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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SYED ABBAS SHAH
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KULSOOM ABBAS
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TAYYABA BIBI
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SYED MUHAMMAD RAZA
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Applicants
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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
[1]
The applicants’ claim for refugee protection was
denied by the Refugee Protection Division of the Immigration and Refugee Board
of Canada (the Board). The applicants now apply for judicial review of that
decision pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act].
[2]
The applicants seek an order setting aside the
negative decision and returning the matter to a different member of the Board
for redetermination.
I.
Background
[3]
The applicants (principal applicant, his spouse,
daughter and son) are citizens of Pakistan who claimed refugee protection under
section 96 and subsection 97(1) of the Act. They resided in the city of Quetta prior to coming to Canada.
[4]
The applicants are Shia Muslim. They claim to be
persecuted because they are of the Shia Hazara religious-ethnic minority. The
daughter has also submitted a gender claim for being an educated woman in Pakistan.
[5]
In 2011, the principal applicant’s son was
targeted by Sunni fundamentalists and the KLashkar-e-Jhungivi. He suspected
this was a result of his scholarship from Balochistan.
[6]
In February 2012, the principal applicant
received three or four threatening phone calls and was followed and threatened
at gun point by unidentified persons in Quetta.
[7]
The principal applicant’s daughter, a senior
officer for Pakistan Airline, received threatening phone calls from the Sunni
fundamentalists at her place of work.
[8]
On April 20, 2012, the applicants fled Pakistan and arrived in Canada on April 21, 2012. In May 2012, they made a claim for refugee
protection.
II.
Decision Under Review
[9]
The Board hearing took two days: May 30, 2013
and June 6, 2013. The Board issued the oral decision for its negative ruling on
June 6, 2013. It subsequently released its written decision on June 19, 2013.
[10]
The Board found that the applicants are neither
Convention refugees nor persons in need of protection. While the Board accepted
that the applicants are Shia Muslims, it did not find on a balance of
probabilities that the applicants are members of the Shia Hazara
religious-ethnic minority. The Board based its decision on two findings: the
applicants’ lack of knowledge for the Hazara ethnicity and their lack of Hazara
distinctive features.
[11]
The Board further noted that although the
applicants stated they were identifiable as Hazara by their names, their place
of residence and their specific Hazara accent, they failed to provide objective
evidence to support these claims. The Board made the following findings: i) the
applicants’ names are traditional Shia-type names that non-Hazara Shia also
possess; ii) non-Hazara persons also live in Quetta and the applicants
failed to prove by their residence that they lived in the Hazaragi community;
iii) there was insufficient evidence to establish that the applicants’ accent,
although distinctive, is inherent in them being of the Hazaragi community; iv)
the only example of specific traditions and behaviour they practice is the consumption
of a specific type of food; and v) the applicants were unable to provide family
background related to their Hazara ancestry.
[12]
Further, the Board did not give any weight to
the interpreter’s identification of the applicants’ accent because of errors in
translation throughout the hearing. It also refused the letters from the
Council of Islamic Guidance as evidence for the applicants’ Shia Hazara origin,
because these letters did not explain what information was used in making the
determination of the applicants’ origin.
[13]
In making its ruling, the Board based its
decision on the applicants’ failure to establish their identity and did not assess
the merits of their claim.
III.
Issues
[14]
The applicants raise one broad issue for my
review: did the Board err in fact, err in law, breach fairness or exceed
jurisdiction in determining that the applicants were not Convention refugees?
[15]
The respondent submits that the applicants
failed to demonstrate there is an arguable issue of law upon which the proposed
application for judicial review might succeed.
[16]
From a reading of the parties’ submissions,
there are three issues:
A.
What is the standard of review?
B.
Did the Board breach procedural fairness?
C.
Was the Board’s decision reasonable?
IV.
Applicants’ Written Submissions
[17]
The applicants argue the standard of correctness
should be applied to the Board’s failure to consider the applicants’ risk of
being Shia and the standard of reasonableness should be applied to whether or
not this point was dealt with by the Board.
[18]
The applicants submit the following points: i)
the Board erred in law because it did not do an analysis of the daughter’s case
as a professional woman; ii) it erred in law because it did not analyze the
applicants’ risk as Shias; and iii) the Board erred in its credibility findings.
[19]
First, the applicants argue that there is a
gender claim by the daughter that is not dependent on her being Hazara or even
Shia and the Board failed to address it.
[20]
Second, the applicants argue the Board
disregarded their risk of being Shia, which is an error of law under Turner
v Canada (Attorney General), 2012 FCA 159 at paragraphs 42 to 45, [2012]
FCJ No 666 and Chamberlain v Canada (Minister of Citizenship and
Immigration), 2012 FC 1027 at paragraph 82, [2012] FCJ No 1140. They
further reference various documents for support.
[21]
Third, the applicants argue the Board erred in
its credibility finding. Firstly, it was unreasonable to find that all the
applicants were lying about their ethnicity because the principal applicant, contrary
to the country evidence, stated mistakenly that there are no Afghans who are
Hazara. Secondly, the applicants’ evidence pertaining to their accent should
have been accepted as not being rebutted because refugee claimants are not
required to corroborate prima facie evidence. For support, it cites Argueta
v Canada (Minister of Citizenship and Immigration), 2011 FC 1146 at
paragraphs 14, 28, 30 and 32, [2011] FCJ No 1403 [Argueta] arguing that
the Board cannot draw a negative credibility inference based on no evidence (Kauser
v Canada (Minister of Citizenship and Immigration), 2012 FC 259 at
paragraph 15, [2012] FCJ No 283 [Kauser]). Thirdly, the applicants
submit that it is unreasonable for the Board to reject the interpreter’s
evidence on their accent because the interpreter made errors in translating a
sale agreement. They argue this was a vague reference and lacked transparency (Hilo
v Canada (Minister of Employment and Immigration), [1991] FCJ No 228, 15
Imm LR (2d) 199 at paragraph 6 [Hilo]).
[22]
In the applicants’ further memorandum, they
argue that the respondent fails to address the point on their risk of being
Shia and the point on the daughter’s risk of being an educated working woman.
V.
Respondent’s Written Submissions
[23]
The respondent argues that the applicants’ sworn
testimony on their ethnicity is not enough in this case as it was rebutted by
the evidence on the record. It reviews some of the Board’s findings for
support: the applicants’ lack of knowledge of their own ethnicity such that the
principal applicant testified erroneously there are no Afghan persons of Hazara
ethnicity is in contradiction to the documentary evidence; the applicants’ lack
of distinct Hazaragi facial features; the applicants’ names which non-Hazara individuals
also share; and the rejected evidence on the attestation of the applicants’ ethnicity
by the interpreter. It argues that these findings concern the weight of the
evidence and questions of weight are solely within the jurisdiction of the
Board (Medarovik v Canada (Minister of Citizenship and Immigration),
2002 FCT 61 at paragraph 16, [2002] FCJ No 64 [Medarovik])
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[24]
The matters of the daughter’s gender claim and
the applicants’ risk of being Shia should be reviewed on a standard of correctness.
Pursuant to Varga v Canada (Minister of Citizenship and Immigration),
2013 FC 494, [2013] FCJ No 531, the assessment of evidence for a ground of
persecution is a procedural issue; and the standard of correctness applies to
the judicial review of a procedural issue (Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190 [Dunsmuir]).
[25]
As for the issue of the reasonability of the
Board’s decision, it is a mix of fact and law and should be reviewed on the
standard of reasonableness. The standard of reasonableness means that I should
not intervene if the Board’s decision is transparent, justifiable, intelligible
and within the range of acceptable outcomes (Dunsmuir at paragraph 47).
Here, I will set aside the Board’s decision only if I cannot understand why it
reached its conclusions or how the facts and applicable law support the outcome
(Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at paragraph 16, [2011] 3 S.C.R. 708). As the
Supreme Court held in Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraphs 59 and 61, [2009] 1 S.C.R. 339, a court reviewing for
reasonableness cannot substitute its own view of a preferable outcome, nor can
it reweigh the evidence.
B.
Issue 2 - Did the Board breach procedural
fairness?
[26]
I agree with the applicants that the Board
breached procedural fairness in failing to consider the applicants’ risk in
being Shia and whether the daughter faces a risk on the ground of being an
educated woman which is not dependent on her being Hazara or Shia.
[27]
First, the applicants’ counsel brought up the
details of the daughter’s gender claim during the Board hearing (see tribunal
record at page 362) and provided supporting argument as to the incident of an
acid attack on a twelve year old girl who advocated for the rights of young
women to get an education in Pakistan.
[28]
Second, pertaining to the applicants’ risk of
being Shia, the applicants referenced documents for support such as the US
Department of State’s Country Reports on Human Rights Practices for 2007, the
International Religious Freedom Report 2008 and an article dated October 29, 2008
from the British Broadcasting Corporation. Here, the Board accepted that the
applicants are Shia Muslims; however, it did not conduct an assessment of the applicants’
risks of being Shia.
[29]
Although a decision-maker is not obliged to
refer to every piece of evidence, the Board’s duty to consider the evidence
increases with the increase of the significance of the evidence (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425, 157
FTR 35 [Cepeda-Gutierrez]). Here, the Board should have, at the very
least, assessed the evidence of increased risk of the daughter being an
educated woman who wants to work and the applicants’ risk of being Shia and
provide the analyses in its decision. However, none was provided in the present
case. I cannot guess what its decision would have been had it not made this
error and actually assessed these two areas. Therefore, the Board breached
procedural fairness.
[30]
Because of my finding on this issue, I need not
deal with Issue 3.
[31]
As a result, the decision of the Board is set
aside and the matter is referred to a different panel of the Board for
redetermination.
[32]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
[33]
In December 2014, after the completion of the
hearing of this matter, new counsel for the applicants sent correspondence to
the Court with respect to whether the applicants were properly represented
before the Board and this Court. The applicants submit that their counsel
before the Board did not provide Urdu versions of government issued
certificates for the two male applicants showing they were Syed Hazaras. The
Board in its decision found the applicants were not members of the Shia Hazara
religious ethnic minority. Since the certificates were not before the Board,
they were also not part of the record before me on this judicial review
application. I have also reviewed correspondence from the respondent’s counsel
dated December 24, 2014.
[34]
I have reviewed the application for judicial
review in this matter and I conclude that the application does not raise as an
issue, the incompetence of counsel, nor was this issue raised at the hearing
before me. On judicial review, the record that I must consider is the material
that was before the decision-maker, not the material that could have been
before the decision-maker. There are certain exceptions to this principle which
do not apply in the present case.
[35]
Based on the facts of this case, I simply do not
have the jurisdiction to deal with allegations that the applicants may not have
been properly represented either before the Board or in front of this Court. I
would note that counsel for the applicants before me did raise the issue of
whether or not the applicants were Hazaras (see applicants’ record at pages 126
to 130).
[36]
Finally, I would note that the Federal Court
issued a procedural protocol dated March 7, 2014, relating to the allegations
of misconduct of counsel.
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