Ottawa, Ontario, October 13, 2006
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
ZARIFA SCHERZAD
NEILOFAR SCHERZAD
HASSAN SCHERZAD
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) rendered October 14, 2005, wherein the applicants – the principal applicant, his wife, his mother and his son – were found not to be “Convention refugees” or “persons in need of protection” pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2] The principal applicant and his mother are citizens of Afghanistan. They are Tajik by ethnicity and Shia Muslims by religion. The principal applicant’s wife was born in Tajikistan, in the former USSR. According to the principal applicant’s Personal Information Form (PIF), the principal applicant, his wife and his mother fled to Germany in 1999. Their refugee claims were rejected, but they were granted temporary residence. Their son was born in Germany in 2003 but is a citizen of Afghanistan. Fearing that the German government would remove them, they left for Canada in 2005 and claimed refugee status. Although the principle applicant’s wife claimed to be a stateless person, she was granted an Afghan passport two days before the hearing before the Board.
[3] The applicants allege a fear of persecution by reason of their religion, nationality and membership in a particular social group. They also claim to be persons in need of protection from the danger of torture, risk of life, or cruel and unusual treatment or punishment should they return to Afghanistan.
[4] In its decision, the Board was satisfied that Shia Muslims would not face persecution in Afghanistan today. It noted that under the new constitution, Shias are free to participate in public life. It also did not find that the principal applicant would face persecution by reason that he was not a devout Muslim.
[5] The principal applicant had also alleged that, as his wife’s mother tongue was Russian, she would be perceived as Russian in Afghanistan and that they would face persecution on this basis. The Board rejected this ground, as there was no independent documentary evidence to support his claim that Russians faced persecution in Afghanistan.
[6] The Board also had credibility concerns with respect to the principal applicant, who had further alleged that he and his wife would be persecuted by a former Taliban leader, who was now one of the heads of security in Herat. It found several implausibilities in his allegations and concluded that the principal applicant had manufactured this story for the purposes of his claim.
[7] The Board also examined the female applicants’ additional grounds of persecution because they are women, and in the case of the principal applicant’s mother, because she is an older woman. The Board noted that the principal applicant’s wife had attended school in Germany and in Canada and that she wanted to become a pharmacist. Although the Board acknowledged that there would be less opportunity for the principal applicant’s wife to pursue higher education in Afghanistan, it was of the opinion that she would be able to pursue her studies online through a long-distance education program. Furthermore, the Board noted that the government of Afghanistan has taken several steps to ensure equal rights for women. It was satisfied that both female applicants would not be subjected to danger, as they would return to Afghanistan accompanied by the male applicants. It concluded that the principal applicant’s wife would not be forced to wear a burqua. It also did not find that the principal applicant’s mother would face a serious possibility of persecution in Afghanistan by reason of her age.
[8] The Court will only intervene where the Board’s findings of fact are patently unreasonable. That being said, the Board’s determination of what constitutes persecution involves a mixed question of fact and law, and is reviewable on a standard of reasonableness simpliciter (Sagharichi v. Canada (Minister of Employment and Immigration) (F.C.A.) (1993), 182 N.R. 398 at para. 3 (F.C.A.); Koken v. Canada (Minister of Citizenship and Immigration), 2005 FC 882 at para. 15).
[9] The present application should be dismissed as I am unable to find any reviewable error in the impugned decision.
[10] The applicants argue that the Board ignored documentary evidence that supported the applicants’ claims. In particular, it failed to consider documentation indicating that conversion from Islam is punishable by death under Sharia law and that Shias have historically faced discrimination from the majority Sunni population in Afghanistan. It also ignored documentary evidence indicating that women are still subject to human rights abuses. Consequently, the Board erred when it found the principal applicant and the female applicants would not face persecution and that their fears constituted “pure speculation”.
[11] The Board is entitled to decide what weight to give to the evidence (Zvonov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1089 (F.C.T.D.) (QL). Accordingly, the Court will not intervene, unless this power is unreasonably exercised. In my view, the Board’s findings were open to it based on the totality of the evidence. The Board is presumed to have weighed and considered all the evidence before it and, in this case, did not have to refer to all the documentary evidence in its reasons (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL); Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R.317). There is no indication in this case that the Board overlooked relevant evidence or made a selective reading of the documentary evidence.
[12] The Board found, on a balance of probabilities, that Shias would not face persecution in Afghanistan today. There was evidence to support this finding. I note that in its reasons, the Board refers to the more recent British Home Office Country Assessment Report, dated April 2005, while the applicants refer to the U.S. Department of State International Religions Freedom Report 2004 in their memorandum. Furthermore, the Board considered the principal applicant’s testimony to the effect that he would be persecuted on the basis that he was not a devout Muslim. The Board did not find any documentary evidence to support this claim. It is also evident from its reasons that the Board considered the documentary evidence that indicated that women are still subject to human rights abuses in Afghanistan. Moreover, it found that the female applicants would not be subject to the same perils as unaccompanied women. It was also satisfied that Afghanistan was making efforts to improve the situation of women. In my view, these conclusions were reasonably open to the Board and are not patently unreasonable.
[13] The applicants further submit that the Board erred “in characterizing the female claimant’s fears as concerns of discrimination rather than fears of persecution”. In particular, it argues that the requirement that women wear a burqua, as well as the limited career and educational opportunities offered to women in Afghanistan constitute persecution.
[14] In Sagharichi v. Canada (Minister of Employment and Immigration) (F.C.A.) (1993), 182 N.R. 398, the Federal Court of Appeal addressed the difference between discrimination and persecution:
It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may very well be seen as amounting to persecution. It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved. It remains, however, that, in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this Court is not warranted unless the conclusion reached appears to be capricious or unreasonable.
[15] In Anguelov v. Canada (Minister of Citizenship and Immigration), 2002 FCT 856, the Court stated:
The distinction between discrimination and persecution or harassment is slim. However, what is relevant is the fact that the applicant does not face the threat of persecution personally and therefore, is not a Convention refugee.
[16] In the case at bar, it is apparent that the Board examined the totality of the evidence. The Board concluded that the female applicants would not be personally subjected to persecution in Afghanistan. It also found that the principal applicant’s wife would not be forced to wear a burqua. It recognized that she would have less opportunity for higher education, but would still be able to pursue her studies online. In my view, these findings were neither capricious nor patently unreasonable. In the particular circumstances of this case, the Board did not err in concluding that these elements did not amount to persecution. (I also note that it never used the word “discrimination” with respect to the female applicants’ claims.)
[17]
For
the above reasons, the application is dismissed. No question of general
importance has been raised by counsel.
ORDER
THIS COURT ORDERS that
- The application for judicial review is dismissed.
- No question of general importance is certified.
“Luc Martineau”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6892-05
STYLE OF CAUSE: SOLIAMAN SCHERZAD ET AL. v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 11, 2006
APPEARANCES:
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Mr. Paul Dineen
|
|
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Ms. Rhonda Marquis
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SOLICITORS OF RECORD:
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Chapnick & Associates Toronto, Ontario
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FOR THE APPLICANTS |
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John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |