Docket: IMM-3136-14
Citation:
2015 FC 406
Ottawa, Ontario, March 31,
2015
PRESENT: The
Honourable Mr. Justice Fothergill
|
BETWEEN:
|
|
MOHAMMAD FAHIM
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
Mohammad Fahim (the Applicant) has brought an
application for judicial review pursuant to s 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the IRPA) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board).
The Board determined that the Applicant is neither a Convention refugee within
the meaning of s 96 of the IRPA, nor a person in need of protection as defined
in s 97(1) of the IRPA.
[2]
For the reasons that follow, the application for
judicial review is dismissed.
I.
Background
[3]
The Applicant is a citizen of Afghanistan who resided in the province of Ghazni. The Applicant alleged before the Board that he participated
in a family-owned business with his brother and his father supplying cars and
spare parts to the United States Army. He said that he became a target of the
Taliban because he had business dealings with the American military.
[4]
The Applicant left Afghanistan after obtaining a
visa to study in the United States. He stayed in the United States from
December 21, 2013 until January 17, 2014, when he arrived in Canada and immediately claimed asylum.
[5]
In a decision dated April 3, 2014 the Board concluded
that the Applicant was neither a refugee nor a person in need of protection. The
determinative issue was the Applicant’s credibility. The Board found that there
was an important contradiction between the statement made by the Applicant at
the port of entry (POE) and what he included in his narrative and alleged before
the Board.
[6]
At the POE, the Applicant was asked: “Did something recently happen in Afghanistan that made you
want to come to Canada?” He responded as follows:
So I was personally being threatened while
in Kabul but I am from Gazni and I knew the threats were coming from Gazni. Our
family business is working with foreigners from the USA. And the opposing
companies from Afghanistan where angry because they could not work with the
Americans [sic throughout].
[7]
When given an opportunity to clarify the
statement he made at the POE, the Applicant testified before the Board that he
thought the question was limited to his recent experiences in Kabul, where the
threat was primarily from rival businesses and the mafia. To the extent that “threats coming from Gazni” was intended to be a
reference to the Taliban operating in Helmand, this was never explained
(Transcript, Certified Tribunal Record at pages 238-239).
[8]
The Board also rejected the Applicant’s
explanation of why he personally had to travel from Kabul to Helmand, instead
of sending another employee of the firm, finding that this was not compatible
with a genuine fear for his personal safety. The Board concluded that the
Applicant’s frequent travel outside Kabul was for purely economic reasons.
[9]
While the Board did not explicitly make a
finding of an internal flight alternative (IFA), it noted that the Applicant
testified that his brother and father did not face the same risk because they
stayed in Kabul where the Taliban do not operate. This was supported by
documentary evidence. The Board found that this “reinforced
negative inferences concerning the story presented by the claimant.” In
addition, the Board noted that a threatening letter offered in evidence by the
Applicant was not addressed to anyone in particular. The Board found that even
if the letter was genuine, it did not demonstrate that the Applicant would continue
to be at risk in Kabul provided that he stopped making trips to Helmand.
[10]
The Board also noted that the letter signed by
the Applicant’s brother did not mention any problems with the Taliban or
business competitors, even though it had been requested by the Applicant in
support of his refugee claim and was dated less than one month before the
hearing. The document appeared to be simply a letter of reference.
[11]
The Board therefore concluded that the Applicant
had not demonstrated that he would be at risk of harm from the Taliban or
business competitors in Kabul.
II.
Issue
[12]
The sole issue raised in this application for
judicial review is whether the Board’s assessment of the Applicant’s credibility
and its treatment of the evidence were reasonable.
III.
Analysis
[13]
The Board’s findings of credibility and its treatment
of the evidence are subject to review against the standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9). This Court owes deference to the Board with
respect to matters of credibility and evidentiary findings, including the
availability of an IFA (Mugesera v Canada (Minister of Citizenship and
Immigration), 2005 SCC 40 at paras 35-38; Trevino Zavala v Canada
(Citizenship and Immigration), 2009 FC 370 at para 5; Hernandez Cortes v
Canada (Citizenship and Immigration), 2009 FC 583 at para 28; Kurkhulishvili
c Canada (Citoyenneté et Immigration), 2015 CF 7 at para 4).
[14]
The Applicant argues that the Board misinterpreted
the Applicant’s declaration at the POE and placed undue emphasis on his failure
to specifically mention the Taliban (Wu v Canada (Minister of Citizenship
and Immigration), 2010 FC 1102 at para 16). According to the Applicant, the
Board failed to consider that the Applicant was suffering from anxiety at the
POE and his statements were interpreted using a related, but different,
dialect. In addition, the Applicant says that the Board did not provide
adequate reasons for rejecting his explanation of why he was personally required
to travel to Helmand as the representative of his family’s business.
[15]
The Respondent argues that the Board’s
credibility findings were reasonable. It was open to the Board to compare and
contrast the Applicant’s assertions at the POE with those he made in his
narrative and before the Board. Since the threat from the Taliban was a central
part of the Applicant’s claim, the Board was entitled to draw a negative
inference from the fact that it was not mentioned at the POE (Abid v Canada (Citizenship and Immigration), 2012 FC 483 at para 15). In addition, the POE
interview notes confirm that the Applicant had no difficulty answering
questions or understanding the interpreter. Finally, it was open to the Board
to reject the Applicant’s explanation for his travel to Helmand. The Board’s finding
that the Applicant’s account was incompatible with a fear for one’s personal safety
was well-founded and sufficiently explained.
[16]
I agree with the Respondent. While minor
discrepancies between POE declarations and oral testimony are not sufficient to
support a finding that an applicant lacks credibility, the Board may draw a
negative inference from the omission of an element that is central to the claim
(Jamil v Canada (Minister of Citizenship and Immigration), 2006 FC 792
at para 25; Alekozai v Canada (Citizenship and Immigration), 2015 FC 158
at para 8). In this case, the Board provided a cogent analysis of why it did
not accept the Applicant’s explanation regarding his travel to Helmand, and it was open to the Board to conclude that travelling for economic reasons was
not compatible with a genuine fear for one’s personal safety.
[17]
The Applicant also argues that the Board was
selective in its reference to the reports contained in the National
Documentation Package for Afghanistan, some of which could be said to support
the Applicant’s claim that he would be at risk even if he stayed in Kabul. The Respondent replies that the evidence demonstrates that the Taliban rarely
operate in Kabul, and the Applicant himself testified that his father and
brother were not at risk.
[18]
Again, I agree with the Respondent. This Court’s
role is not to reassess the evidence, provided that the Board’s decision falls
within the range of “possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir,
above at para 47). Having regard to the evidence as a whole, including both the
documentary evidence and the Applicant’s testimony, it was reasonable for the
Board to find that the Applicant would not be at risk if he stayed in Kabul.
[19]
The application for judicial review is therefore
dismissed.
Email this Content