Date: 19990602
Docket: IMM-4516-98
BETWEEN:
SAFA ABDULHUSSAIN, WADI FAHAD, and
SHAHAD FAHAD
Applicants
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
CULLEN, J.:
[1] The applicants challenge by way of judicial review the decision (A98-00427, A98-00428, and A98-00429) of the Immigration and Refugee Board (Refugee Division) (the "Board") in which the panel determined that the applicants are not Convention refugees within the meaning of subsection 2(1) of the Immigration Act , R.S.C 1985, c. I-2 (the "Act"). Leave to commence this application for judicial review was granted on 9 February 1999.
[2] Background
The principal applicant, Safa Abdulhussain, (the "applicant") is a 30-year-old citizen of Iraq and the mother of the two minor applicants, Wadi Fahad and Shahad Fahad. They left Iraq for Jordan on 25 February 1998, and arrived in Canada on 21 March 1998, whereupon they claimed refugee status. The applicant and her children, who are Shiite Muslims, fear persecution in Iraq on the grounds of religion and membership in a particular social group, her family. The applicant"s mother and two sisters were accepted as Convention refugees by Canada in August 1998.
[3] In her personal information form, the applicant states that her problems began because her father was born in Iran. He is also a Shia Muslim, and according to the applicant, the Iraqi security police do not trust Shia, especially those born in Iran. Her father and brother were detained for four months in early 1991. This led her mother and two sisters to leave Iraq in July 1996. Their departure resulted in further harassment by Iraqi security forces, starting in February 1997.
[4] The applicant stated that she was interrogated as to the whereabouts of her mother and sisters, and whether she had heard from her uncles and aunts in Iran. The applicant indicated that this would happen approximately twice each month. One particularly upsetting incident, which occurred on 1 February 1998, involved a nighttime visit to the applicant"s home by the security forces. During an interrogation, the applicant heard her daughter crying and discovered that an officer had almost completely disrobed the child.
[5] This latter incident was the final straw, and the applicant"s husband arranged for the family"s departure to Jordan on 21 March 1998, although he was unable to accompany them.
[6] Board"s Decision
The Board noted that part of the applicant"s fear of returning to Iraq stemmed from the presence of her mother and sisters in Canada, and stated,
| Given that they have been here since July of 1996 and you are the security forces" only link to them, it doesn"t make sense to us that they would let you go. And you told us you had not problem in leaving the country. You were given identity documents for you and the children which you told us are for the purpose of people leaving for Jordan. It is not plausible to us that they would give you these documents knowing for what purpose they are issued. Because once in Jordan, you could leave for any country in the world, as you did. You left for Canada from Jordan. You told us that you paid the usual fees for them and paid a bribe to expedite getting the visa quickly. It is not plausible to us that they would issue these documents to you. If they really were that concerned about you, they would want you to stay in the country. They wouldn"t issue the documents. You told us that your passport was examined when you crossed the border into Jordan. It is not plausible that they would leave you with a passport. They would have withdrawn it from you if they wanted to keep you in the country. It is also not plausible to us that you would have any fear of persecution in Iraq because of your refusal to join the Baas [sic ] party. |
| * * * |
| And in this connection"I want to go back a bit to the plausibility of them allowing you to leave as your counsel has pointed out, there is documentary evidence that the Iraqi authorities, and this is in the Doss Report in Exhibit R1, Tab 1, that there is a widespread practice of holding family members and close associates responsible for the alleged actions of others. In other words, you were a valuable asset to them; why would they let you go? It is not plausible to us that they would do so. |
| You mentioned the incident with your daughter and this is an unpleasant incident, but you had already decided to leave the country before this incident occurred. |
| So for these reasons, basically for the reason of credibility, we find that you are not a Convention refugee. And since the claim of your children is based on that of your claim, it is our finding that they also are not Convention refugees. |
(AR, vol. 1, tab 3, pp. 9-10)
[7] Thus, the Board did not believe the applicant"s subjective fear of persecution was objectively founded. However, beyond stating that its negative determination is based on an adverse credibility finding, the Board"s decision seems to rest on implausibility findings regarding the circumstances surrounding the departure from Iraq of the applicant and her children.
[8] Applicant"s Position
The applicant submits that the Board erred by disbelieving her method of departure from Iraq. The applicant contends this error stems from the Board"s assumption that Iraqi authorities wanted to keep her and her children inside Iraq. The applicant submits that their departure was secured by payment of a bribe and, in any event, is not relevant to her fear of persecution. The applicant also submits that if the Board does not believe sworn testimony regarding their departure, it is obligated to point to the evidence on which it relies for this conclusion.
[9] The applicant submits that the thrust of her case is that Iraqi authorities distrusted and persecuted her for three reasons: religion (the family are Shiite Muslims), foreign birthplace of her father (Iran), and the flight of her mother and sisters from the country in 1996. The applicant argues that the Board erred by focussing on the latter point only and ignoring the totality of the evidence in coming to its determination. Nowhere in its reasons does the Board detail its disbelief of the acts of persecution. Moreover, the applicant submits that the Board erred in suggesting that because the applicant"s daughter was disrobed and touched by a security member after the applicant and her husband had decided to leave Iraq, this incident has no bearing on her fear of persecution. The applicant contends that this incident should operate to support and confirm her fears.
[10] The applicant also submits that the Board violated a principle of natural justice when it denied her counsel the opportunity to conduct an examination-in-chief first and only permitted what it termed "redirect" at the conclusion of the refugee claim officer"s questions.
[11] Respondent"s Position
The respondent submits that the Board was correct in finding that the applicant was not a Convention refugee because she failed to establish the whether her subjective fear is well-founded. In coming to this conclusion, the Board found that the applicant"s evidence lacked credibility and plausibility. The respondent submits that these findings are unassailable in the absence of overriding error.
[12] With regard to the applicant"s argument that the Board erred in disregarding or misconstruing the evidence, the respondent submits that this issue is really one of weight and assessment of the evidence. The respondent submits that the Board is not obligated to mention each aspect of the evidence placed before it, but rather is presumed to have weighed and considered all of the evidence.
[13] The respondent contends that subsection 68(2) of the Immigration Act allows the Board to deal with proceedings as expeditiously as the circumstances and fairness permit. The respondent submits that the applicant"s counsel was given the opportunity to elicit testimony and make submissions.
[14] Analysis
In the instant case, the Board made no general finding of credibility; instead, it focussed on implausibilities surrounding the applicant"s departure from Iraq. Little of the applicant"s case was actually dealt with by the Board. Thus, it may be presumed that, apart from the stated implausibilities, the applicant was a credible witness: Pathamanathan v. Canada (MEI) (93-A-67, 24 June 1993).
[15] In Chen v. Canada (MEI) (A-30-91, 4 October 1993), a case involving an applicant who was a member of a popular Chinese singing group and who received an exit visa after being detained and interrogated by Chinese authorities, Justice Mahoney held that the Board erred:
| The Refugee Division made no adverse findings as to the Appellant"s credibility. It accepted his story as outlined above. It found his fear of persecution not to be well-founded mainly because it found it implausible that, had the Chinese authorities regarded his case seriously, they would have released him from jail and permitted him to keep the exit visa he had to allow him to perform outside China. All of the implausibilities perceived had to do with the tribunal"s appreciation of the attitude and efficiency of the authorities and nothing at all to do with the Appellant"s conduct. |
[16] Similarly, in Padilla v. Canada (MEI) (1991), 13 Imm. L.R. (2d) 1 (F.C.A.) Justice Mahoney held:
| The Board, by confining its consideration of the consequences of the Appellant"s desertion to what might occur through due legal process, ignored the basis upon which he had asserted his fear of persecution as well as his evidence, whose credibility it did not question, and persuasive corroborative documentary evidence. |
[17] In Ye v. Canada (MEI) (A-711-90, 24 June 1992), the Board"s findings of a lack of credibility on the part of the claimant were based almost entirely on findings of implausibility based on extrinsic criteria. In allowing the appeal and setting aside the Board"s decision, Justice MacGuigan queried whether the Board may have imposed Western concepts on what he termed "subtle oriental totalitarianism" and whether it was correct to interpret Chinese law enforcement in light of Western models.
[18] In the case at bar, the Board focussed its inquiry on the same areas which were found to constitute errors warranting judicial intervention in Chen, Padilla, and Ye. The Board incorrectly allowed itself to engage in speculation as to why Iraqi authorities would have allowed the applicant and her immediate family to leave the country. The Board did not properly address the basis upon which the applicant asserted her fear of persecution, except to say that if the authorities were so interested in her, they would not have allowed her to leave the country. It should be noted that the applicant offered as an explanation the fact that her husband paid the requisite authorities a monetary bribe to hasten the processing of their exit visas. In its reasons, while the Board acknowledges the bribe, it neither specifically accepts or rejects this explanation.
[19] On a further note, the Board appears to disregard evidence of the incident involving the applicant"s daughter, which it termed "unpleasant." The Board incorrectly implies that because this incident occurred after the family had decided to leave Iraq, it has no bearing on the issue of persecution. The Board should have considered this incident in the context of the well-foundedness of the applicant"s fear of persecution.
[20] The applicant"s counsel takes issue with the order of presentation at the hearing. Section 69.1(5) of the Act provides that the claimant shall be given a reasonable opportunity to present evidence, question witnesses, and make representations. Reference to the transcript shows that the applicant"s counsel was given the opportunity to fully elicit testimony and make submissions.
[21] Accordingly, the decision of the Board is set aside and the matter returned back for a rehearing by a differently constituted panel. No question of general importance was offered for certification by either counsel at the conclusion of the hearing.
B. Cullen
J.F.C.C.