Ottawa, Ontario, January 30, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
HALIME FERADOVA
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] In this application for judicial review, Ferad Feradov and Halime Feradova challenge a decision by the Immigration and Refugee Board (“Board”) by which their joint claim to protection under sections 96 and 97 of the Immigration Refugee and Protection Act (IRPA), S.C. 2001, c.27 was dismissed.
I. Background
[2] Mr. Feradov and Mrs. Feradova are Bulgarian nationals. They came to Canada in 2000 to visit their son and his family. Their son, Sedat Kerim, arrived in Canada from Bulgaria in 1997 and was successful in claiming refugee protection here on the basis of a personal history of persecution at the hands of the Bulgarian police. His wife followed him in 1999 and the family now resides in Ontario.
[3] Mr. Feradov and Mrs. Feradova are Ethnic Turks. They are also Sunni Muslims. Their claim to refugee protection was based on a central allegation that Mr. Feradov had been beaten by the Bulgarian police after participating in a ritual sacrifice of a ram in accordance with Muslim practices. According to Mr. Feradov, the police became involved after a complaint. They ordered him to appear at a nearby police detachment and accused him of disturbing the peace. He said that he was beaten with a baton on the legs and feet to the point that he had difficulty getting home. Apparently, no charges were ever brought against him and he chose not to seek any form of redress for the assault.
[4] Following this incident, Mr. Feradov claimed that he and other Muslim villagers gathered one thousand signatures on a petition to the village mayor seeking the dedication of a public site to practice their religious traditions, including ritual sacrifice. When the Bulgarian mayor refused this request, Mr. Feradov and Mrs. Feradova accepted an invitation from their son to come to Canada. Their subsequent application for humanitarian and compassionate relief under IRPA was declined and it was then that they sought refugee protection.
II. The Board Hearing and Decision
[5] The Board took evidence from Mr. Feradov but Mrs. Feradova was not called to testify. Most of the questioning of Mr. Feradov was conducted by the Board but his counsel did ask him a few clarifying questions at the conclusion of his testimony. Much of the questioning of Mr. Feradov was perfunctory and, in some instances, it assumed a level of sophistication that clearly he did not have. For instance, asking Mr. Feradov to respond to verbatim and complex passages from official country condition publications was a largely pointless exercise which served only to cast him unfairly as a poor witness.
[6] Despite acknowledging Mr. Feradov’s lack of education and sophistication, the Board rejected his evidence and found him not to be credible or trustworthy. Its findings in support of that adverse credibility assessment included attributions of failed memory, testimonial inconsistencies and documentary omissions.
[7] The Board was particularly concerned with Mr. Feradov’s ostensible inability to recall even the month of the police beating which was his central allegation of persecution. In addition, the Board was troubled by Mr. Feradov’s inability to identify the verse from the Koran by which the ritual sacrifice was supposedly carried out. The Board also found an inconsistency between Mr. Feradov’s Personal Information Form (“PIF”) narrative and his testimony as to who was present at the sacrifice – whether friends or family or both.
[8] The Board made a number of additional findings in support of its negative assessment of Mr. Feradov’s credibility including the following:
● It concluded that someone other that Mr. Feradov and Mrs. Feradova had written the PIF narrative describing an event which did not occur.
● It rejected Mr. Feradov’s evidence of the beating, in part, because of his failure to mention in his PIF the evidence he gave to the Board that his injuries preventing him from driving home.
● It found it implausible that Mr. Feradov was singled out by the police for a beating to the exclusion of the others present at the sacrifice.
● It expressed concern about Mr. Feradov’s inconsistent responses as to how and where he obtained the one thousand signatures on the petition to the mayor.
● It attributed evidence to Mr. Feradov that he had not involved the local Imam or Mosque in the sacrifice ritual “because the Mosque was illegitimate and old” and that Mr. Feradov was a non-practicing Muslim.
[9] In addition, the Board concluded that, by not seeking legal recourse, Mr. Feradov had failed to rebut the presumption of state protection. It also relied upon some of the tendered evidence of country conditions and concluded that mainstream followers of Islam are not widely persecuted or discriminated against and that human rights are generally improving in Bulgaria.
III. Issues
[10] (a) What is the appropriate standard of review for the issues raised by the Applicants?
(b) Did the Board commit any reviewable errors in its decision?
IV. Analysis
[11] It is well accepted that this Court should treat the Board’s credibility conclusions with great deference. In Perera v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1337, 2005 FC 1069, Justice Michel Beaudry observed that the Court has consistently adopted a standard of patent unreasonableness for issues of credibility:
[14] The Board's role to assess evidence and the credibility of an applicant is widely recognized for being part of its primary function. In this regard, the Federal Court of Appeal has determined that the standard of review when dealing with a question of credibility is patent unreasonableness.
[15] 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 (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 at pages 316 and 317 (F.C.A.)).
[16] This was recently reiterated by the Federal Court in Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17 at para. 31, where Justice Martineau confirmed, after applying the pragmatic and functional approach, that the appropriate standard of review when dealing with the assessment of documentary evidence and the plausibility of the Applicant's testimony is patent unreasonableness:
para. 31 In light of the above, in the particular case before us, I would find that the balancing of the above-mentioned four factors militates in favour of the application of two standards of judicial review: (1) the patent unreasonableness standard in the case of the analysis of the documentary evidence and the assessment of the applicant's credibility; [...]
[12] In a number of recent decisions, this Court has applied a standard of review of reasonableness simpliciter to the Board’s findings concerning state protection. In Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 232, 2005 FC 193, Justice Danièle Tremblay-Lamer conducted a pragmatic and functional analysis and found that the standard of review on this issue should be reasonableness:
[10] Turning to the first of those factors, decisions of the Board are not protected by a strong privative clause (see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982). [See Note 2 below] The second and third factors, however, militate in favour of curial deference. Whether state protection is available, or whether the claimant has sought that protection, engages the relative expertise of the RPD. And though the provision in question in effect requires a determination of the rights of individuals claiming refugee status, the legislation gives substantial discretion to the RPD.
[Footnote omitted]
[11] However, the nature of the question is key in this application and also brings into play relative expertise. Deciding whether a particular claimant has rebutted the presumption of state protection involves "applying a legal standard [i.e. "clear and convincing confirmation of a state's inability to protect": Ward, supra, at para. 50] to a set of facts", which according to the Supreme Court constitutes a question of mixed fact and law: Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at para. 26. The RPD has relative expertise with respect to the findings of fact and assessing country conditions. However, the Court has relative expertise with respect to whether the legal standard was met. Accordingly, the appropriate standard of review is in my view reasonableness simpliciter. This is consistent with the rulings characterizing the issue of state protection as a question of mixed fact and law: Smith, supra and Racz, supra.
[13] The above-noted analysis of the standard of review applicable to the Board’s state protection determinations has been followed in a number of subsequent decisions: see Nkole v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1802, 2006 FC 1433 at para. 4, Resulaj v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 337, 2006 FC 269 at para. 17 and Robinson v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 588, 2006 FC 402 at para. 8. I adopt the above analysis insofar as it is applicable to the circumstances of this proceeding.
[14] This is one of the relatively rare instances where the Board’s adverse credibility conclusion does not stand up to scrutiny and where it can be fairly described as patently unreasonable. Here the Board drew several inferences that were unwarranted. It also misconstrued significant aspects of Mr. Feradov’s testimony. The cumulative effect of these errors is sufficient to send this case back for redetermination because I am not satisfied that the result obtained would necessarily have been the same in the absence of those errors.
[15] One of the Board’s key credibility findings was that Mr. Feradov was unable to recall even the month of the alleged police beating. This is a clear mischaracterization of his testimony. In response to the Board’s questions, Mr. Feradov identified the day of the week as a Friday in the mid summer of 2000. Then, in response to a leading question by the Board, he accepted that the incident occurred on a Friday in mid-July, 2000. Obviously, the Board is free to ask leading questions but when it does so it cannot fairly characterize the witness’s affirmative response as a failure of memory.
[16] The Board’s criticism of Mr. Feradov’s evidence concerning his religious practices and knowledge was also unwarranted. This is the same problem that was of concern to the Court in Ullah v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1918 at para. 11 (T.D.). The fact that Mr. Feradov could not identify the passage from the Koran which dealt with ritual sacrifices is no basis for a credibility concern. Very few well-educated Christians would fare any better if asked about their biblical knowledge. For a semi-devout Muslim with a grade 7 education, Mr. Feradov cannot be faulted for this supposed lapse.
[17] The Board’s attribution to Mr. Feradov of testimony that “he did not practice the Muslim religion” and that he did not involve the local Mosque in the sacrifice because it was “illegitimate and old” is also unwarranted. When he was asked if he practiced his religion on a regular basis, Mr. Feradov replied: “We practice it. My wife practices all, but by myself, no.” This is hardly an acknowledgment that Mr. Feradov was a non-practicing Muslim. Similarly, nowhere in the transcript does he describe the local Mosque as illegitimate and old.
[18] The Board’s concern about supposed omissions from Mr. Feradov’s PIF is similarly unjustified. While the failure to mention material or key allegations of persecution in one’s PIF is a reasonable basis for concern, the omission of peripheral detail is not. This Court has frequently held that the Board should not be concerned about minor or collateral omissions from an applicant’s PIF: for example see Perera v. Canada (Minister of Citizenship and Immigration), above; Singh v. Canada (Minister of Employment and Immigration) (1993), 69 F.T.R. 142, [1993] F.C.J. No. 1034 and Akhigbe v. Canada (Minister of Citizenship and Immigration), [2002] FCT 249, 2002 FCT 249. It is well understood that these documents are often prepared by representatives or on the advice of representatives with different views of materiality. In this case, Mr. Feradov testified that “we did not write [the “PIF”]”. Surprisingly, the Board found this response to be troubling when, at most, it was an ambiguous reply to the Board’s question about the failure to provide dates in the PIF. The Board’s additional concern about Mr. Feradov’s failure to mention in his PIF that he could not drive home after the police beating is an example of the Board analysing minutia with little more significance than Mr. Feradov’s failure to state in the PIF how he got to the police station in the first instance.
[19] Mr. Feradov’s PIF was clearly not intended to be an encyclopaedic recitation of the evidence. To the contrary, it was obviously written as a very general summary of the central aspects of his claim and the absence of collateral detail ought not to have concerned the Board.
[20] The significance of Mr. Feradov’s identification of those who attended the sacrifice ritual is similarly over-stated by the Board. The fact that he mentioned the presence of only relatives in his PIF but testified that both relatives and friends were present is the kind of microscopic difference that the Board said it was mindful to ignore.
[21] The Board’s plausibility finding that it was not reasonable that Mr. Feradov would be singled out for attention by the Bulgarian police also cannot be sustained. Mr. Feradov testified that he arranged and carried out the sacrifice in response to the illness of his grandchild. The fact that the police might single him out from the others who had merely attended the event is not at all implausible. If an example was being made of Mr. Feradov, he was an obvious and vulnerable target. The Board’s finding of implausibility on this point is untenable because the facts presented by Mr. Feradov were not “outside the realm of what could reasonably be expected”: see Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131, 2001 FCT 776.
[22] While there were unquestionably problems with other aspects of Mr. Feradov’s testimony, the cumulative significance of the above-noted factual errors is sufficient for a finding that the Board’s credibility conclusion was patently unreasonable.
[23] In some cases, a finding by the Board that an applicant has failed to rebut the presumption of state protection may stand alone as a basis for upholding a negative refugee determination. I cannot find that to be the case here because the Board’s state protection conclusion was based, at least in part, upon its overall adverse credibility assessment of Mr. Feradov. The issues seem to me to be sufficiently linked that the Board’s erroneous treatment of one issue necessarily undermines its treatment of the other.
[24] Finally, I am concerned with the Board’s rather selective approach to the assessment of the country condition evidence having particular regard to the treatment of Turkish Muslims in Bulgaria.
[25] In the documentary record are references to the harassment of Muslims in Bulgaria. Police brutality, although unconstitutional, was also recognized in a 2004 United States Department of State report as a common occurrence apparently reinforced by a culture of impunity. That report also recognized that victims of police brutality were often too intimidated to lodge a complaint with the authorities. That was precisely the concern expressed by Mr. Feradov who believed that he would only be beaten again if he came forward with an official complaint. Such a concern might well be natural for a person who had lived under a totalitarian regime for many years and whose suspicion of the authorities might well linger after the transition to democratic rule.
[26] I am, therefore, allowing this application with the matter to be remitted to a differently constituted Board for reconsideration on the merits.
[27] Neither party suggested a certified question and I agree that no question of general importance arises on this record.
JUDGMENT
THIS COURT ADJUDGES that this application is allowed with the matter to be remitted to a differently constituted Board for redetermination on the merits.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1663-06
STYLE OF CAUSE: FERAD FERADOV, HALIME FERADOVA v. THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 16, 2007
REASONS FOR JUDGMENT
AND JUDGMENT BY: BARNES J.
APPEARANCES BY:
Krassina Kostadinov For the ApplicantS
John Loncar For the Respondent
SOLICITORS OF RECORD:
Waldman and Associates
Barristers & Solicitors
Toronto, Ontario For the ApplicantS
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent