Docket: IMM-3745-00
Neutral Citation: 20001 FCT 406
BETWEEN:
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] The applicant challenges by way of judicial review the decision of the Immigration and Refugee Board (Refugee Division) (the "Board"), dated June 23, 2000, in which the Board determined that the applicant is not a Convention refugee within the meaning of subsection 2(1) of the Immigration Act (the "Act"). Leave to commence this application for judicial review was granted on February 1, 2001.
Background
[2] The applicant, Ashraf Ghalzai, is a 28 year old citizen of Afghanistan. He left that country on November 6, 1999 for Pakistan, where he remained for approximately five weeks, arriving in Canada on December 12, 1999 and claiming refugee status the following day. The applicant bases his claim on his fear of persecution on the ground of political opinion. He fears persecution at the hands of the ruling Taliban and its Moral Police.
[3] In his Personal Information Form ("PIF"), the applicant provided information on his background in support of his claim. He stated that his main business consisted of renting out televisions, VCRs, and video cassettes. However, when the Taliban came to power in the autumn of 1996, they closed down all such stores. The applicant stated that he was able to hide his new televisions, VCRs, and videos at a cousin's house, and the Taliban confiscated only one old television and VCR. At that point, he began selling produce from his store.
[4] Sometime in 1997, the applicant was urged by some customers to resume his video business (the PIF states it was in mid 1997; the applicant's affidavit, sworn August 16, 2000, states it was October of that year). He was scared and did not do so. However, in the beginning of 1998 the Taliban allowed some relaxations in some of the restrictions it had imposed, and the applicant began to rent out televisions, VCRs, and religious videos. Customer demand for Indian and Pashto movies impelled the applicant to begin providing these videos to select customers in a clandestine fashion.
[5] In the spring of 1999, the moral police raided the applicant's store, but did not find any "immoral" videos. The applicant stated that he obtained videos of Indian and Pashto movies from a man who owned a music store in Jalalabad. That man was arrested on November 1, 1999 after a raid on his store by the moral police. The applicant felt that he was in danger, so he moved his store to Zahidabad, where his maternal uncle lived.
[6] On November 14, 1999, the applicant's cousin was arrested by the moral police and questioned about the applicant. The police then raided the applicant's house, where he lived with his parents and siblings, and his father was arrested for not preventing his son from spreading immorality. At that point, the applicant's mother asked her brother to help the applicant to flee the country.
Board's Decision
[7] In its reasons, the panel found that the applicant had failed to establish the required nexus to a Convention refugee ground; the panel also held that the applicant was not credible.
[8] With regard to nexus, the panel held that the applicant had not shown that he had ever expressed his political opinion, and that his decision to rent videos and equipment in defiance of the Taliban's edict was driven by economic and financial motivations, not political ones. The panel held that the edict forbidding rental or sales of particular movies and music was applied to the population as a whole without discrimination. The panel concluded:
Consequently, the panel is of the opinion that the claimant definitely faced no persecution. He may have confronted an economic discrimination which was not specifically targeted at him. If his store was closed, in a worst case scenario, the claimant could do farming with his father. The Talibans made a general application of the ordinance they had issued. Moreover, the Talibans had shown no discrimination in enforcing such application in practice. This is evident from his own testimony as well.
(Applicant's Application Record, page 8)
[9] With regard to credibility, the panel found the applicant evasive when questioned about police searches for arms and drugs on people travelling by bus. The panel stated:
When told to explain how they would check for the arms and drugs, he said that arms are big and cannot be hidden. Regarding the drugs, he gave an unusual answer. He said that he cannot comment on it and is prohibited in Islam. The panel believes that the claimant is avoiding to [sic] answer the question. Thus, he is not credible.
(Applicant's Application Record, pages 8-9)
[10] The panel also found the applicant to be vague in responding to questions regarding the courier he used to deliver the illegal videos from Jalalabad. The panel found that the applicant had changed his story when he said that he was not involved in the transportation aspect.
[11] Finally, the panel also had difficulty with the applicant's testimony regarding the risk he faced and potential punishment. The panel stated:
The claimant was told that this fellow was taking a great risk carrying illegal goods (videos), the claimant's order receipt on which this person wrote something after delivering these and his (courier) identification. The claimant was asked if he ever was concerned about his own safety if the courrier [sic] caught [sic]. He responded by saying that the order receipt had only his (the claimant) name and not the shop. When confronted, he agreed that his name will tell it all and he would be then presented to a Kazi (judge). He added that the Kazi would do something about it, without explaining what that something is. He, then, further added that he left his country for this reason. This kind of testimony renders him not credible.
(Applicant's Application Record, page 9)
Applicant's Position
[12] The applicant contends that the panel erred in making its findings regarding the applicant's credibility, or lack thereof. The applicant argues that the panel lingered over minor details and provided vague and unsatisfactory reasons for dismissing the applicant's credibility.
[13] The applicant also contends that the panel failed to appreciate his testimony that no state protection could be sought because Afghanistan's government, the Taliban, is the agent of persecution.
[14] Finally, the applicant submits that the panel erred in its decision that no nexus was established. The applicant submits that he testified that he is opposed to the Taliban and its edict forbidding rental and sales of certain music and movies. The applicant contends that his clandestine video operation amounts to an expression of a political opinion contrary to that of the Taliban, and that they would have perceived his actions as a challenge to their authority.
Respondent's Position
[15] The respondent submits that a determination regarding nexus is largely a question of fact and entirely within the Board's expertise. The respondent submits that the applicant broke a law of general application, and that he failed to establish that the law amounts to persecution in relation to a Convention ground.
[16] The respondent submits that the Board's credibility findings are substantiated, and are not unreasonable so as to warrant judicial intervention.
Discussion
[17] In order to qualify for Convention refugee status, a claimant must establish a link between himself and persecution for a Convention reason. In the case at bar, the applicant has asserted a political or religious opinion as the basis of his claim. The question that must be asked is whether the agents of persecution – the Taliban and their moral police – perceived the applicant's actions to be an expression of a political or religious opinion. The panel found that the applicant contravened an edict, or a law, of general application; it applied to the population as a whole. The applicant failed to establish that he was singled out and targeted in a manner that amounts to persecution. The panel was not satisfied that the Taliban or the moral police would perceive the applicant's actions as the expression of a political or religious opinion. In my opinion, there is nothing in this finding or conclusion that warrants judicial intervention.
[18] A more troubling aspect of the panel's decision, however, is its credibility determinations. The panel found the applicant to be evasive and to have given an "unusual" answer when questioned about police searches of bus passengers for drugs and arms. Reference to the transcript is helpful:
Q. So, how do they ... how do they know if you have arms like ...
A. Like a... a gun or an arms is not a small thing that you could put in your pocket. So, they just look at you and ... and you cannot hide big things like rocket and a big gun... and munitions, bombs.
Q. Okay. So, they are... they are looking for bombs and big rockets and things like that?
A. Yes, so that people do not collect these arms and rebel against us.
BY PRESIDING MEMBER (to claimant)
Q. What about drugs?
A. The drugs are prohibited because they are against humans and against religion.
BY REFUGEE CLAIM OFFICER (to claimant)
Q. Sir, how would they search for drugs?
BY COUNSEL(to presiding member)
- If the claimant knows, Mr. Presiding Member.
BY CLAIMANT(to refugee claim officer)
- They are looking...
BY PRESIDING MEMBER (to interpreter)
Q. Could you translate "if he knows"?
BY COUNSEL(to interpreter)
- If he knows.
BY CLAIMANT(to counsel)
- I cannot really comment on it, but in... generally, like searching vehicles, turning the seat upside down and look at people and search their goods.
(Certified Tribunal Record, pages 337-38)
[19] In my opinion, it is difficult to reconcile this exchange with the subsequent characterization placed upon it by the panel, which found the answer to be "unusual" and the applicant to be avoiding the question. In my opinion, it was not reasonable for the panel to find the applicant not credible over what appears to be a fractured exchange, with the applicant ultimately providing an answer.
[20] The panel also had difficulty with the applicant's answers regarding the courier who would deliver the videos. The panel found that the applicant changed his testimony in regard to his involvement in the transportation aspect of the clandestine video operation. In its reasons, the panel did not provide any references to specific portions of the transcript, which would have been helpful. It appears, however, that on page 325 of the transcript, the applicant stated:
And I use to operate my business clandestinely, I would bring cassettes from [Jalalabad] and would rent them out secretly to my customers.
[21] Further on in the transcript, at page 335, the applicant elaborated on the procedure he used to get the prohibited videos:
When my clients would demand new movies, then I will take their names on a piece of paper and I would go to the shop of Akhtar Shimwar and later on he will deliver them to me.
[22] It is not entirely clear from the transcript that the applicant changed his story, as the panel asserts. His first answer, when he stated that he would bring the cassettes from Jalalabad, is somewhat ambiguous and could support two interpretations: first, in the sense that he personally brought the videos back, or second, that he would arrange for them to be brought back. His further testimony supports the latter interpretation, viz. he would travel by bus with an order for videos, which he would then place, and the courier would later bring the videos to him at his home town. It is not readily apparent that the applicant changed his story and, in this respect, if the panel had provided specific instances in the transcript it would indeed have been of assistance.
[23] Finally, the panel had difficulty with the applicant's responses to questions about the risk he faced and potential sanctions. In particular, on page 332 of the transcript, the applicant was asked what he thought would happen to him upon his return to Afghanistan, and he replied:
It is entirely dependent on the [Kazi] Islamic Judge. He could do anything if I am presented to him, I could be put in prison, I could be killed, my nails could be pulled out and there is a possibility that they do not present me to the [Kazi], the Islamic Judge, and they do something to me themselves.
[24] Again, it is somewhat difficult to discern what the panel found, or did not find, in this answer that would lead it to conclude, "This kind of testimony renders him not credible." The applicant's PIF indicates, and the panel noted in its reasons, that the applicant has only five years of schooling. It is entirely reasonable that he may not know what sorts of sanctions he may face and that he fears all manner of extreme ends. However, it is not clear how this should reflect badly on his credibility.
[25] In conclusion, in my opinion, the panel does not appear to have fallen into error with regard to the issue of nexus; however, its credibility findings do not appear to be reasonable when reference is made to the transcript, and as such, the panel misconstrued the evidence before it.
[26] The panel member reviewed the answers given by the applicant as to why he sold and continued to sell videos. As I have said, the applicant's counsel states that it was because the applicant believed that the Taliban views on religion were contrary to his own views, that he continued to sell videos which, I believe, he knew or should have known were contrary to what the moral police would accept.
[27] I have read the transcript of the hearing. I do not intend to quote from the transcript as it is apparent to me, from a reading of it that the main reason, if not the only reason, that the applicant was dealing in videos was because of the economic benefits it brought to him. As the applicant states, he could not support his family in dealing with fruits and vegetables and farming with his father would not be very beneficial financially.
[28] Unfortunately for the applicant, I cannot but agree with the decision of the panel that no nexus exists for a Convention reason as found in the Act.
[29] Neither party submitted a question for certification.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
April 27, 2001