Date: 20030210
Docket: IMM-5358-01
Neutral citation: 2003 FCT 138
OTTAWA, ONTARIO, THIS 10th DAY OF FEBRUARY 2003
PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
DELMAN SHORSH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is a young Kurd from Iraq. He claims a well-founded fear of persecution from the Parti Democratique Kurdish (the "PDK") who allegedly killed his father, kidnapped and perhaps killed his mother and sister. He also raises the fact that the Iraqi government supports the PDK and would not offer him any protection.
[2] The main event that triggered the departure of the applicant from Iraq allegedly occurred on or about the night of May 1, 2000. During that night, six men came to the applicant's home to demand money and his father's bus for use by the PDK. This was not the first time that such a request was made. The father told them that he would be able to get the money the next day but they insisted that they needed it immediately. The applicant's mother yelled at the men and was hit with a rifle. The applicant then tried to help her but was also hit and went unconscious. He awoke in the hospital having been taken there by a friend. The applicant does not know what happened to his mother and sister and assumes that his father was killed that night.
[3] The applicant seeks judicial review under section 18.1 of the Federal Court Act of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated November 5, 2001, wherein it was determined that he was not a Convention Refugee pursuant to section 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
Board Decision
[4] The Board concluded as follows:
Also why would PDK believe that the bus belonged to his friend's father, when in the past they had taken it from the claimant's father and when they had gone to take it from him on the night of the incident?
The claimant's testimony has not been reliable about this incident and about his being pursued by the guards.
We accept that he is a young Kurd and, the question arises whether he would be, if he goes back, in any trouble. Counsel referred to C-3, response to information request IRQ362818. This quotes the Director of the Institute Kurd Paris that the situation in the Iraqi enclave remains stable and PDK and PUK are committed to the Washington Agreement, and little by little they are implementing its provisions. It also quotes the Manchester Guardian as saying that Iraqi Kurdistan is thriving. It no longer suffers from extreme poverty, and it is really doing well. And this is a later document, March 22, 2001.
Counsel has referred to T-10, but this is an old document dated 1995, Amnesty on Human Rights Abuses by PUK. She mentions Tab 11, but there also is a May 1997 report. T-12 says that no forced recruitment is taking place T-14 is a 1997 document that says that if you remain neutral you would face difficulties in getting jobs, etc. T-15 is also a 1996 document. So these are old documents, and they do not take into consideration the new situation.
If there was any evidence or documentation that today young Kurds, if they are neutral, face more than a mere possibility of persecution or come close to it or are being recruited forcibly, I would have given the claimant the benefit of the doubt and I would have found that he faces more than a mere possibility of persecution.
But the documentary evidence says that there is no such thing going on at the present time. The claimant's own narrative doesn't mention major trouble except for this particular incident. I can give him the benefit of the doubt only if it is a borderline case. If the documentary evidence does not support him and if his story has implausibilities, then it is not under my authority to give the benefit of the doubt.
...
On the whole, looking at the testimony, I find that the claimant has not established that there is more than a mere possibility of his facing persecution if he were to return to Kurdistan and Shorsh Delman is not a Convention refugee.
Issues
[5] The main issues raised by the applicant are as follows:
1. did the Board make an unreasonable assessment of the applicant's credibility?
2. did the Board ignore relevant portions of the documentary evidence when concluding that a neutral Kurd in Iraq would not be at risk of persecution? and
3. did the Board ignore part of the applicant's evidence pertaining to fear of persecution or otherwise made an error of law?
Credibility Finding
[6] First of all, the determination of the applicant's credibility is the heartland of the Board's jurisdiction and this Court has found that it has a well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant (Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 (F.C.T.D.) at para. 38; Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), N.R. 300 at 306 (F.C.A.); and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at 40 (F.C.T.D.)).
[7] Moreover, it has been recognized and confirmed that, with respect to credibility and the assessment of evidence, this Court may not substitute its decision for the Board's when the applicant has failed to prove that its decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at para. 14 ("Akinlolu"); Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124 at para. 9 ("Kanyai"); and the grounds for review at subsection 18.1(4)(d) of the Federal Court Act).
[8] Normally, the Board is entitled to conclude that an applicant is not credible because of implausibilities in his or her evidence so long as its inferences are not unreasonable and its reasons are set out in "clear and unmistakable terms" (Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.); Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.) ("Aguebor"); Zhou v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1087 (F.C.A.); and Kanyai, supra, at para. 10).
[9] Furthermore, the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality (Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 at para. 2 (F.C.A.); and Aguebor, supra, at para. 4). The Board may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence (Akinlolu, supra, at para. 13; and Kanyai, supra, at para. 11).
[10] In the case at bar, the Board raised many implausibilities in the applicant's testimony and inconsistencies that cast doubt on his credibility. It is apparent from reading the transcript of the hearing that the Board gave the applicant several opportunities to explain facts that were extremely pertinent to his application. The applicant's answers were often vague and contradictory and therefore the Board's decision was not based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
Documentary Evidence
[11] With respect to the alleged failure of the Board to consider relevant portions of the documentary evidence, it was confirmed by the Federal Court of Appeal in Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087 that:
We are not persuaded that the Refugee Division made any error that would warrant our interference. The material relied on by the Board was properly adduced as evidence. The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely. ...
[12] The test to be met by the applicant was discussed in Toth v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1518 (F.C.T.D.) which states as follows at paragraph 23:
As the Federal Court of Appeal stated in Salibian v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 165, a refugee claimant need not show that he or she or members of his or her group have been persecuted in the past in order to establish the well-foundedness of the fear of persecution. Rather, the panel should consider whether the evidence on the record, together with past events, demonstrate that the claimant would objectively be at risk if he or she returned.
(my emphasis)
[13] Furthermore, it was concluded in Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.) as follows:
Counsel for the appellant submitted, however, as noted supra, that other portions of the Amnesty International Report were ignored by the Board and that such a circumstance represents a valid ground of appeal. I respectfully disagree. In my view the conclusions of the Board were reasonably open to it based on the totality of the evidence adduced and, consequently, it did not err in law. The fact that some of the documentary evidence was not mentioned in the Board's reasons is not fatal to it's decision. The passages from the documentary evidence that are relied on by the appellant are part of the total evidence which the Board is entitled to weigh as to reliability and cogency.
(my emphasis)
[14] The main issue in the present case relates to the fact that the Board mentions, at the end of its decision, that "[i]f there was any evidence or documentation that today young Kurds, if they were neutral, face more than a mere possibility of persecution or come close to it or are being recruited forcibly, I would have given the claimant the benefit of the doubt and I would have found that he faces more than a mere possibility of persecution". This statement raises the concern that the Board ignored some portions of the documentary evidence which speak to the risks of young neutral Kurds in Iraq.
[15] After reviewing the documents before the Board, it appears that the applicant is relying on documents dated 1996 and which describe events going back to 1992 up until 2000. The only document referring to recent events is found at Tab 10 of the certified record, at page 74, which mentions:
With regards to the affiliation of Kurdish people in northern Iraq, the Director of the Institut [sic] kurde de Paris specified that individuals do not have the choice of being neutral as the population in the two zones are considered to be part of the PDK or the PUK, depending upon which zone they reside in (ibid.).
(Research Directorate, Immigration and Refugee Board, Ottawa, Iraq: Situation in the Kurdish enclave in northern Iraq; whether there are pressures such that an individual Kurd would find it difficult to remain politically neutral, 22 March 2001)
[16] However, it was mentioned earlier in the same document that "[a]t the beginning of 1999, they signed the Washington Accord" and "[i]n the summer of 2000, further peace talks were held in Washington and, in July 2000, an agreement was reached between the two parties" that "the situation in the Iraqi Kurdish enclave remains stable (14 Mar. 2001).The PDK and the PUK are committed to the Washington agreement and little by little, they are implementing its provisions" and finally that "[t]he newspaper mentions that the security of the Kurdish population in the enclave is precarious as it depends on the "good will of the international community"" (tribunal's record at pages 72-73).
[17] After reviewing the documentary evidence I cannot conclude that the Board erred in law and ignored portions of the documents. The consequences of being a neutral Kurd today in Iraq does not appear to include persecution as the applicant argues is demonstrated by the evidence. Therefore, I find that the Board's decision is not erroneous.
Other Grounds of Review
[18] As for the last issue concerning the misinterpretation of the grounds of persecution, the evidence must be assessed together, and not in isolation from each other (Lai v. Canada (Minister of Citizenship and Immigration) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.)). That is what the Board did in its decision, and its conclusion is reasonable. The Board made no error of law. Although the applicant's counsel suggests that it did not consider the elements of the evidence cumulatively, a close reading of its decision shows that it considered all the evidence in light of the applicant's actual fear of persecution.
[19] This does not mean that I would have come to the same conclusion. In this case, however, this is not the point. In light of the evidence in front of me, which is the same as the evidence in front of the Board, it cannot be concluded that it ignored or misconstrued any of the evidence in this case, as submitted by the applicant. In any event, in view of the adverse credibility finding made by the Board, I find that the other grounds of review raised by the applicant are unfounded.
[20] Neither counsel submitted a question of general importance for certification.
ORDER
The application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated November 5, 2001, wherein it was determined that the applicant was not a Convention Refugee pursuant to section 2(1) of the Immigration Act, is dismissed.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5358-01
STYLE OF CAUSE: Delman Shorsh v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Monday, February 3, 2003.
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: February 10, 2003
APPEARANCES:
Ms. Silvia R. Maciunas FOR APPLICANT
Mr. Derek Rasmussen FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Silvia R. Maciunas FOR APPLICANT
Ottawa, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada