Date: 20020402
Docket: IMM-33-01
Neutral citation: 2002 FCT 364
Ottawa, Ontario, April 2, 2002
PRESENT: THE HONOURABLE MR. JUSTICE EDMOND P. BLANCHARD J.
BETWEEN:
MOSSED AL-SHAMMARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Court has before it an application for judicial review from a decision by the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") on December 13, 2000. The applicant claimed refugee status in Canada as he said he feared being persecuted for his political opinions attributed to him by the Iraqi authorities and his conscientious objection to military service.
[2] The applicant Mossed Al-Shammari was born in Kuwait on December 17, 1976, and is an Iraqi citizen. He claimed he lived in Kuwait from his birth until 1990. The family lived in Kuwait, not Iraq, his father's country of origin, since he did not agree with Saddam Hussein's policy on the war between Iran and Iraq. According to the applicant, it was not until 1990, following the invasion of Kuwait by Iraq, that the family was forced to leave Kuwait and return to Iraq.
[3] The applicant tried to obtain an Iraqi citizenship card in 1992. So the applicant would not be forced to do military service, the applicant's father allegedly made a false statement to a government official about the applicant's age, stating that he was born in 1965, adding 11 years to his age since his date of birth was December 17, 1976. According to the applicant, this false statement also prevented him from continuing his secondary education since he was too old. He said he then began working with his brothers in farming in 1995.
[4] According to the applicant, he always feared being arrested at a control point and being found to have falsified his age in order to avoid doing military service. He claimed that the penalty in such a case was prison and torture as the applicant would be treated as a deserter.
[5] The applicant said he worked as a driver transporting farm harvests and during these moves the applicant was arrested several times by members of the Baas Party, which needed a vehicle and a driver to accompany them into the Al Ahouar region so as to fight the government's opponents. According to the applicant, such operations, named Al Sakhra, were frequent among Baas Party members. The applicant did not dare to say anything and obeyed their orders as he still feared being detained and having the falsification of his age discovered.
[6] In 1997, when the applicant was working in construction, the applicant said he was injured by a hand explosive. He went to the hospital to be treated. According to the applicant the police came to the hospital to question him about the explosive. They came back several times and threatened to re-open his case and charge him with being a terrorist and a spy if he did not give them money. The applicant's evidence was that he had to give them bribes to keep them quiet.
[7] As a result of this repeated harassment, and because he was still afraid of being found to have falsified his age in order to avoid military service, the applicant said he obtained a passport and left Iraq before, as he said, he was subjected to even worse persecution. After leaving Iraq, the applicant stayed for three months in Jordan. He left Jordan on October 24, 1999 and travelled through Syria, the Arab Emirates and Switzerland before arriving in Canada on November 5, 1999, where he claimed refugee status the same day.
[8] The hearing on the applicant's claim took place on October 10, 2000. The Refugee Division decided that the applicant was not a Convention refugee. This negative decision was based on a lack of credibility by the applicant.
Points at issue
[9] The applicant alleged that:
(1) the Refugee Division made an error in its assessment of the identity documents submitted by the applicant;
(2) the Refugee Division erred in its assessment of the facts concerning the applicant's age;
(3) the Refugee Division made an error in concluding that the government's interest in the applicant was unlikely;
(4) the Refugee Division should have concluded that the applicant was a conscientious objector; and
(5) the Refugee Division should have considered the documentary evidence about the objective situation prevailing in Iraq, despite its doubts as to the applicant's credibility.
(a) Standard of review
[10] The applicable standard of review for Refugee Division decisions is generally that of the patently unreasonable decision (Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300, on line: QL). This Court has several times said that the Refugee Division is in the best position to assess the applicants' testimony. As the Court of Appeal stated per Décary J.A. in Aguebor c. Canada (Minister of Citizenship and Immigration), [1993] F.C. No. 732, at para. 4 (C.A.):
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[11] The conclusion that emerges from this Court's earlier judgments is that so long as the Division members' interpretation of facts pursuant to s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, is not patently unreasonable, it is not this Court's function to intervene through judicial review.
Analysis
(a) Identity documents
[12] As a result of its analysis the Refugee Division found that the identity documents filed by the applicant had no evidentiary value, because the documents had all been forged, except perhaps for one, the applicant's Kuwaiti birth certificate. At p. 2 of the Refugee Division's reasons, there is the following conclusion:
In his narrative the claimant stated that he lived in fear of being uncovered to have lied about his age in order to avoid military service. However, in his oral testimony, the claimant stated that his father had presented false documents which said that he had already served his compulsory military service in Iraq. He further stated that all six of his brothers have avoided serving in the military by taking similar divertive measures, as did the claimant. He was asked if his "father had falsified government documents" to which he replied "Yes". Documents such as Exhibit P-2 (Passport); Exhibit P-3 (Citizenship certificate - Iraq); and, Exhibit P-4 (National Identification Card), are all knowingly false. These are said to be official identification documents, yet all are false. Although Exhibits P-5 through P-11 are school attestations, the tribunal cannot give any value to these documents which could just as easily have been falsified in an endeavour to submit some form of identification. The only remaining document which may have had some value is the claimant's birth certificate. It had also been coded as P-5 in the first list of exhibits. The probative value of this document is lost in the number of false official government identification documents.
[13] The respondent argued that the conclusion arrived at by the Refugee Division was reasonable since the applicant knowingly filed several false documents. It is true that all the documentary evidence from Iraq about the applicant's identity was false. This fact was never concealed or disputed by the applicant: the evidence was that the false documentation was obtained by the applicant in Iraq solely to conceal his age in order to avoid military service in Iraq under Saddam Hussein's political regime. The Refugee Division based its conclusion, namely that the said documents from Iraq were false, on the applicant's testimony. The applicant was believed on this point by the Refugee Division.
[14] The applicant made the argument that the Refugee Division should have taken into account that the birth certificate, unlike the other documents, was issued by Kuwaiti, not Iraqi, authorities. Further, in its reasons the Refugee Division admitted that the document was the only one that might have some evidentiary force. The question of the applicant's identity is a crucial aspect of the claim. The Refugee Division attached no evidentiary force to the birth certificate from Kuwait, concluding that this document should be regarded as [TRANSLATION] "lost" with all the other false government documents submitted by the applicant. It did so despite the fact that the evidence did not in any way mention that the said birth certificate might be false and that what prompted the applicant obtaining all the other false documents in Iraq was reasonably explained by him. In my opinion, this finding by the Refugee Division, which rejected the birth certificate, was made in a perverse or capricious manner or without regard for all the material before it in its assessment of the evidence submitted by the applicant. If accepted, such evidence could be of capital importance to the claim, and for these reasons I consider that in drawing this conclusion the Refugee Division erred in law.
(b) Assessment of facts regarding applicant's age
[15] The Refugee Division concluded that there was a contradiction by the applicant about his date of birth and age. At pp. 2 and 3 of the reasons, there is the following:
... He was asked how old he was on the day of the hearing (October 10, 200) to which he replied that he was twenty-five years of age. He was reminded that in answer to question 4 of his Personal Information Form (PIF) the date of birth is indicated as 17-12-1976, and that he is in fact twenty-three years of age and will only be twenty-four next December 2000. The explanation given was similar to the one regarding facial hair in that it was culturally correct for him to add one year because he was about to begin that year. The tribunal concluded that the story given by this claimant is one of convenience, lies and false identity.
I note that in December 2000, four days after the date of the decision which is the subject of this judicial review, the applicant was 24 years old. In other words, he was on the brink of his 25th year. I also note that the evidence was that the applicant always maintained the same version of the facts regarding his date of birth. In light of the passage from the transcript of the hearing between the chairperson of the Refugee Division and the applicant on this point, I cannot see how it could have been concluded that there was a contradiction justifying the Refugee Division's conclusion. I feel that this conclusion reached by the Refugee Division was patently unreasonable and is not supported by the evidence submitted.
(c) Interest in applicant by the authorities
[16] The Refugee Division concluded it was unlikely that the police placed the applicant under surveillance for over two years following a construction accident. The applicant submitted that the Refugee Division could not impose Western ideas on situations occurring in a country which does not have the same cultural and social foundations, and it was very likely that the police would decide to treat an individual with hostility, although the latter had not initially committed any wrongdoing or offence. The applicant maintained that this conclusion of improbability was patently unreasonable, capricious and without foundation. Although another tribunal might hypothetically have concluded otherwise, I consider, based on the evidence, that this conclusion of improbability is not patently unreasonable and does not indicate the existence of a reviewable error.
(d) The applicant: a conscientious objector
[17] The Refugee Division concluded that the applicant had not established a valid conscientious objection to military service, concluding that the decision originated exclusively with the applicant's father. The evidence was that when the applicant was questioned at the hearing, he replied he did not want to do military service "Because I don't want to kill children or people. This is not normal, this is a crime". According to the applicant this testimony, which contradicts the Refugee Division's conclusion, namely that the decision not to do military service was exclusively a decision by the applicant's father, was not mentioned by the Refugee Division. The applicant argued that the Refugee Division's conclusion did not take into account all the evidence presented to it, and so erred in law.
[18] The respondent argued that general statements such as that made by the applicant are much too vague and terse to establish the kind of objection to military service that could be regarded as sufficient to justify a well-founded fear of persecution within the meaning of the Convention.
[19] The respondent maintained that it was not sufficient for a claimant to assert a moral objection to military service: it still had to be established that the law of general application imposing compulsory military service was persecuting on one of the grounds in the Convention (Zolfagharkhani c. M.E.I. (1993), 155 N.R. 311). The respondent maintained that no evidence was included in the applicant's file on this aspect of the matter, namely whether the Iraqi legislation providing for compulsory military service was persecuting on one of the five grounds listed in the Geneva Convention.
[20] On this point, I agree with the respondent's arguments. The Refugee Division made no error in the case at bar in considering that the applicant had not presented evidence of a reasonable fear of persecution based on his objection to military service in his country of origin.
(e) Objective situation prevailing in Iraq
[21] The last point raised by the applicant had to do with the objective situation prevailing in Iraq. The applicant maintained that, despite the Refugee Division's doubts about his credibility, it should have considered whether objectively there was a reasonable chance that the applicant would be persecuted if he returned to Iraq. The applicant maintained that the Refugee Division erred in not taking into account the objective situation in Iraq, which in his submission, based on the documentary evidence, established a reasonable possibility that he would be persecuted if he returned to his country.
[22] The documentary evidence showed that Iraq has been the scene of flagrant and systematic human rights violations. In its report on the situation in Iraq, dated November 24, Amnesty International said:
In April 1999 the UN Commission on Human Rights strongly condemned the "systematic, widespread and extremely grave violations of human rights and of international law by the Government of Iraq, resulting in all-pervasive repression and oppression sustained by broad-based discrimination and widespread terror", the "summary and arbitrary executions" and the "widespread, systematic torture and the enactment and implementation of decrees prescribing cruel and inhuman punishment as a penalty for offences". (Tribunal's record, p. 163)
[23] Further, the documentary evidence was that capital punishment was applied in Iraq to a broad range of criminal offences and political crimes. The supreme penalty is imposed for offences which to do not appear to have fatal or especially serious consequences, including the forging of documents regarding military service (Decree 179/94) (tribunal's record, p. 173).
[24] This Court has repeatedly held that a claimant must establish a credible link between his claim and the objective situation prevailing in a country in order to be granted Convention refugee status (Canada (Secretary of State) v. Jules, (1994), 84 F.T.R. 161). Accordingly, it will not suffice for an applicant to present evidence showing problems encountered by some of this fellow-citizens. He must also establish a connection between his claim and the objective situation in his country. I am satisfied that such a connection could be based on the evidence contained in the record. I consider that the Refugee Division erred in not taking the objective situation in Iraq into account.
[25] As the Refugee Division concluded that the applicant lacked credibility, it found that there was no credible evidence on which this link could be based and so did not assess the validity of the claim in light of the objective documentary evidence.
[26] From reading the reasons of the Refugee Division I consider that the conclusion regarding the applicant's lack of credibility was based in part on implausibilities and erroneous and unreasonable conclusions, including those relating to these identity documents and his age, which I have already mentioned in these reasons. As it decided to conclude that the applicant was not credible on such bases, the Refugee Division did not assess the validity of the claim as it should have done. I my opinion, this suffices to justify the Court's intervention. It is not this Court's function to intervene in the exercise of a discretionary power by a tribunal simply because the Court would have exercised that power differently if it had had the responsibility of doing so; but this Court must intervene if the tribunal bases its conclusions on improper factors or factors unrelated to the purpose of the Act. In my opinion, that is the case here.
[27] For all these reasons, I allow the application for judicial review.
[28] The parties did not ask the Court to certify a serious question of general importance as provided in s. 83 of the Immigration Act, R.S.C. 1985, c. I-2, although they had an opportunity to do so. I therefore do not propose to certify such a question.
ORDER
THE COURT ORDERS that:
1. The application for judicial review is allowed.
2. The matter is referred back to a panel of different members of the Refugee Division.
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Edmond P. Blanchard
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-33-01
STYLE OF CAUSE: MOSSED AL-SHAMMARI
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 25, 2001
REASONS FOR ORDER AND ORDER BY: BLANCHARD J.
DATED: APRIL 2, 2002
APPEARANCES:
STYLIANI MARKAKI APPLICANT
GUY LAMB RESPONDENT
SOLICITORS OF RECORD:
SABINE VENTURELLI APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERT RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA