Ottawa, Ontario, November 9, 2005
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
1. Introduction
[1] This proceeding is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated November 2, 2004, wherein the Applicant=s refugee claim was rejected and the Applicant was determined not to be a Convention Refugee nor a person in need of protection.
[2] The Applicant seeks an order that the Board=s decision be set aside and the matter referred back to a differently constituted panel for rehearing and re-determination of his refugee claim.
2. Factual Background
[3] The Applicant, Ibrahim Mahmood, is a citizen of Iraq, born on September 12, 1939. He is a Shiite Muslim, from a family whose background is one of the 12 Shiite imams. His grandfather was a religious scholar who taught at mosques in Al Najaf and his father was a devoted Muslim.
[4] The Applicant moved to Baghdad after high school to open an electrical hardware store. Problems for Shiites in Iraq began after Saddam Hussein=s rise to power in 1978-1979. Friends and neighbours would come to his shop for religious consultations, and meetings were held to discuss Shiite Muslim issues in the country including fasting, worshipping, conduct and behaviour. In 1985, his shop was raided by the Iraqi security on suspicion that the Applicant had illegal publications against the government. He was taken away, detained for three days and beaten.
[5] The Applicant was arrested a second time in 1987 and detained for one week. The Iraqi security was allegedly looking for someone responsible for the distribution of anti-government flyers in the Applicant=s area. While in detention, the Applicant was interrogated and beaten. The Applicant also states that he was arrested and detained in 1991 and 1999, during which detentions he was interrogated, beaten and burned with cigarettes.
[6] These arrests and detentions caused the Applicant to flee Iraq for Iran, then for Syria, with his wife and two children. He transited through Cyprus, Greece and Italy, before he arrived in Canada on December 10, 2001, and subsequently claimed asylum.
[7] The Applicant claimed that he was persecuted in Iraq because of his religion, perceived political views and for being a member of a devout Shiite family.
[8] The hearing took place before the Board on September 9, 2004. The negative decision was rendered on November 2, 2004. Leave to commence judicial review was granted on June 7, 2005.
3. The Decision Under Review
[9] The Board found that the Applicant=s allegations were not supported by credible or trustworthy evidence. The Board found that he would not be of interest to the Iraqi authorities or that he would be at risk if he returned to Iraq. It was not plausible that only the Applicant was arrested and interrogated while all the individuals present in his shop were not. The Board also noted the lack of corroborating documents to substantiate his travel itinerary.
[10] Further, the Board found that the Applicant was speculating on the issue of change in circumstances in Iraq and concluded there is no reasonable chance that he would face persecution if he returned to Iraq. The Board did not believe that supporters of Saddam Hussein would kidnap him for ransom. The Board found that the Applicant came to Canada for reasons other than those alleged. He was found not to be credible.
[11] Consequently, the Board denied the Applicant=s claim and determined that he is neither a Convention refugee nor a person in need of protection.
4. Issue
[12] The following issue is determinative of this application: Did the Board err by basing its negative credibility determination on erroneous implausibility and credibility findings?
5. Standard of Review
[13] Findings of fact and credibility are the Aheartland@of the Board=s jurisdiction. The Board has the opportunity to observe firsthand the demeanour of witnesses and as a result is in the best position to assess a claimant's credibility. Such findings may only be set aside if made in a perverse or capricious manner, or without regard to the material before the Tribunal. See Mugesera v. (Minister of Citizenship and Immigration), 2005 SCC 40, at paragraph 38. The standard of review of issues of credibility is patent unreasonableness: Aguebor v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No 732 (QL).
6. Analysis
[14] In reaching its conclusion that there is insufficient credible or trustworthy evidence to support the Applicant's claim, the Board did not identify any internal inconsistencies or contradictions in the Applicant=s testimony. The Board based its conclusion that the authorities would have no interest in the Applicant or that he would be at risk if returned to Iraq, on the following findings:
(1) Since authorities were monitoring suspected anti-government activities at the Applicant's store, the Board found it implausible that none of the people attending the meetings at the store were ever arrested or questioned, as alleged by the Applicant. As a result, the Board impugned the Applicant's credibility.
(2) The Board also impugned the Applicant's credibility for failing to produce corroborating documents to support his travel itinerary to Iran, Syria, Cyprus, Greece, or Italy.
A. Implausibility Findings
[15] With respect to the Board's plausibility findings, the Applicant contends that the findings are unreasonable because the Board=s conclusions are based on speculation as to how Iraqi authorities would act in the circumstances.
[16] A Board is under a duty to justify its credibility findings with specific and clear reference to the evidence, particularly when the evidence is cogent and relevant to the Applicant=s allegations: Armson v. Canada(Minister of Employment and Immigration), [1989] F.C.J. No. 800 (QL). This duty is particularly important when a claimant's credibility is affected by implausibility findings of the Board. In Leung v. Canada(Minister of Employment and Immigration), [1994] F.C.J. No. 774 (QL), the Court stated at paragraph 15 of its reasons:
This duty becomes particularly important in cases such as this one where the Board has based its non-credibility findings on perceived Aimplausibilities@ in the claimants= stories rather than on internal inconsistencies and contradictions in their narratives or their demeanour while testifying. Findings of implausibility are inherently subjective assessments which are largely dependant on the individual Board member=s perceptions of what constitutes rational behaviour. The appropriateness of a particular finding can therefore only be assessed if the Board=s decision clearly identifies all of the facts which form the basis for their conclusion.
Plausibility findings should therefore be made only in the clearest of cases, that is, if the facts as presented are outside the realm of what could reasonably be expected: Valtchev v. Canada(Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131 (QL).
[17] I am of the view that the implausibility findings of the Board, upon which it based its credibility finding, are flawed. There is no evidentiary basis to support the Board's finding that the authorities would not have arrested the Applicant without arresting or questioning others who entered his shop for meetings or otherwise. The Board therefore speculated on how the Iraqi authorities would have acted and failed to consider the Applicant's circumstances. The Applicant had testified that he was well known to the Shia in his area since his father and grandfather had been religious teachers, a fact which might have distinguished him from others entering his shop. In my view the Applicant's arrest cannot be said to be outside the realm of what could reasonably be expected, particularly given the Applicant's family history and the arbitrary nature of the arrests and behaviour of state authorities in Iraq. The circumstances do not constitute the clearest of cases which would warrant or justify the Board's plausibility finding.
[18] Further, a presumption of truthfulness is created when a refugee claimant swears to the truth of his allegations and, if the Board is unable to articulate why it is suspicious of the sworn testimony, the benefit of any unsupported doubt must go to the person giving the evidence: Vodics v. Canada(Minister of Citizenship and Immigration), 2005 FC 783. This is a case where the benefit of the unsupported doubt must go the Applicant. The Board's implausibility findings are not supported in the evidence and are speculative. Further, the arrests and detention cannot be said to be outside the realm of what could reasonably be expected. I therefore find the Board's plausibility findings to have been made in error.
B. Travel Itinerary
[19] The Board also found that there was no credible or trustworthy evidence to show that the Applicant had been to Iran, Syria, Cyprus, Greeceand Italy and that the Applicant=s documents were taken by a smuggler. The Board held that there was, pursuant to section 7 of the Refugee Protection Division Rules, SOR/2002-228 , a need for corroborating documents. That section provides as follows:
|
7. Documents establishing identity and other elements of the claim. The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them. |
7. Documents d=identité et autres éléments de la demande
Le demandeur d'asile transmet à la Section des documents acceptables pour établir son identité et les autres éléments de sa demande. S'il ne peut le faire, il en donne la raison et indique quelles mesures il a prises pour s'en procurer. |
[20] Section 7 makes the production of documents a requirement for establishing identity and other elements of the claim. A claimant that fails to do so must explain why they were not provided and what steps were taken to obtain them.
[21] Failure to produce acceptable documents establishing identity and other elements of the claim, without a reasonable explanation, is a factor that the Board can properly consider in determining whether a claim is well-founded. This Court in Amarapala v. Canada(Minister of Citizenship and Immigration), 2004 FC 12, has established that corroborating documents may not always be required if a reasonable explanation is offered as to why they were not provided.
[22] In the present case, the Applicant did explain why he did not provide acceptable travel documents. He stated that he was in these countries illegally often using false passports to gain entry. In his PIF narrative, he wrote that he travelled with smugglers who took away any documents they would have provided him. This was confirmed by his oral evidence before the Board.
[23] In its reasons for decision, the Board found that "...there is no credible or trustworthy evidence to show that the claimant's documents were taken by the smuggler given that he paid for them." The Board's finding in respect to the Applicant's failure to produce corroborating documents to establish his travel itinerary is not patently unreasonable. It is a factor the Board appropriately considered in considering the credibility of the Applicant's claim. However, this factor is not determinative of this application given the other erroneous findings of the Board.
C. Medical and Psychiatrist Reports
[24] The Applicant also contends that the Board erred by failing to have regard to medical and psychological reports which were before the Board. The Applicant argues that those reports support his allegation that he was tortured. The Applicant contends that these documents are consistent with his evidence that he had been burned with cigarettes while being interrogated under detention. He submits that this evidence is cogent and relevant and directly contradicts the Board's findings that the Iraqi authorities had Ano interest in him@ and that the Applicant=s allegations about Abeing arrested for the time he alleges@ are not credible.
[25] The Board does note at the outset of its reasons that it considered all the evidence tendered before it. However, the making of such a broad statement cannot obviate the Board=s obligation to deal expressly in its reasons with documentary evidence which is important and relevant to a key element of the claim, namely whether the Applicant was submitted to torture while in detention, and which evidence supports a conclusion that is contrary to that rendered by the Board. See Cepeda-Gutierrez v. Canada(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.
[26] I find that the medical report, in particular, is relevant evidence which emanates from an independent source and is consistent with the Applicant=s allegation of torture and persecution. This evidence corroborates his testimony and supports a conclusion which is contrary to the Board's in respect to the Applicant's credibility. This evidence should have been expressly dealt with by the Board. In my view the Board erred by failing to do so. See Vijayarajah v. Canada(Minister of Citizenship and Immigration), [1999] F.C.J. No. 731 (QL); Seevaratnam et al. v. Canada(Minister of Citizenship and Immigration) (1999), 167 F.T.R. 130.
6. Conclusion
[27] In view of the erroneous plausibility findings of the Board discussed above and its failure to consider the medical report, I conclude that the Board=s negative credibility determination is patently unreasonable and constitutes, in the circumstances, a reviewable error. In consequence, the application for judicial review will be allowed and the matter remitted to a differently constituted panel for reconsideration.
[28] The parties have had the opportunity to raise a serious question of general importance as contemplated by paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and have not done so. I am satisfied that no serious question of general importance arises on this record. I do not propose to certify a question.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is allowed.
2. The matter will be remitted to a differently constituted panel for reconsideration
3. No question is certified.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9843-04
STYLE OF CAUSE: Ibrahim Mahmood v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 30, 2005
REASONS FOR ORDER AND ORDER: Blanchard J.
APPEARANCES:
Jack C. Martin FOR THE APPLICANT
Matina Karvellas FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jack C. Martin FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada