Date : 20050421
Docket : IMM-3939-04
Citation : 2005 FC 540
BETWEEN :
NAMAN SALEEM THAMIR
SAHERA SALEM JALHOUM
ALES NAMA THAMIR
YOUSIF NAMAN THAMIR
Applicants
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application pursuant to s. 74 of the Immigration and Refugee Protection Act S.C. 2001 c. 27 for judicial review of a decision, dated the 5th of April 2004 ("Decision"), of the Refugee Protection Division of the Immigration and Refugee Board ("Board"), wherein the Board found that the applicants were not Convention refugees or persons in need of protection.
[2] The principal applicant ("PA") Naman Saleem Thamir, is a 35-year-old citizen of Iraq. The female applicant, Sara Salem Jalhoum, is a 39-year-old citizen of Iraq. The minor applicants, Ales Naman Thamir and Yousif Naman Thamir, are 3 and 6 year old also citizens or Iraq, respectively. They all claim to have a well-founded fear of persecution by reasons of religion and membership in a particular social group, specifically as members of the Mandaean Religious Community. The applicants also claim to be persons in need of protection by reason of risk of life.
[3] The PA and the female applicant claim that, as members of the Mandaean religion, they faced discrimination as they grew up. In addition, the PA claims that he was detained in 1992, for six months, as a result of an article written and published which described his attendance at a University graduation party where he claims to have dressed as a woman. Other than the general discrimination claims and the one specific incident, the applicants' claims are based on discrimination experienced by other family members and not incidents specific to the four applicants.
[4] In 1999, due to continuing harassment, the PA left Iraq for Jordan. The remainder of his family stayed in Iraq until the PA returned in 2000 and brought them to Jordan.
[5] The applicants went to the United States in 2001 and made a claim for asylum. The claim was denied due to the PA's reavailment in Iraq in 2000, when he returned to get his family. The family did not appeal the decision, but instead came to Canada, and made a refugee claim in June 2003. The Board rejected their claim on April 5th 2004.
[6] The Board found that the PA was not credible as regards the alleged incident in 1992. The Board noted that the PA was unable to produce the article which allegedly led to his detention and found that his testimony about the incident was implausible.
[7] The Board, in the negative decision, also noted the applicant's reavailment in Iraq to retrieve his family in 2000, his delay in leaving (incident in 1992, departure in 1999) and a lack of documentary evidence to support the objective basis for the applicants' claims.
[8] The Board also incorrectly found that the Mandaeans are a small Christian religious group, relying on the applicants' counsel's submissions. The applicants' counsel characterizes her error as an innocent erroneous submission as the Mandaean and Christian religions are different.
[9] The Board noted that the PA claims persecution on the basis of his religion (Mandaean). The PA supplied documentary evidence that states that Mandaeans are discriminated against academically and in the job market. The Board notes that the PA was able to obtain a professional degree in architecture, despite the alleged discrimination.
[10] The Board also went through an analysis of the conditions in Iraq for the minority Christians. Following the analysis for Christians, the Board went through an analysis of the conditions in Iraq specific to Mandaeans, both in pre-war and post-war Iraq. However, the Board dismissed the applicant's documentary evidence.
[11] The Board concluded that, based on the lack of credibility and the lack of subjective fear, the applicants were not Convention refugees or persons in need of protection.
[12] The applicant submits that the Board erred in law in determining that the applicants' evidence was not credible. The applicant also submits that the Board erred in characterizing Mandaeans as Christians.
[13] The applicants submit that the Board erred in considering that Mandaeans were a division of the Christian religion. The respondent argues that the applicants' counsel made the submissions that the religions were related and now characterizes the submission as an innocent erroneous submission. The applicants' argue that a proper analysis of their claim is based entirely on their religion as Mandaeans, and improperly characterizing them as Christians is detrimental to their claim.
[14] The applicants argue that the Board also erred in discounting the documentary evidence provided in support of their claim. The respondent notes that the Board addressed the documentary evidence submitted by the applicants in its decision. The respondent says that the Board dealt reasonably in dismissing the documentary evidence.
[15] The PA argues that the Board's finding that, "it is unlikely that university graduates and senior university graduates, who are Christian would do such things [as dressing in women's clothing]," is absurd as the idea that a male university graduate could not be silly at a graduation party is not realistic. The respondent notes that the PA did not produce the article which allegedly led to his detention and submits that the Board's implausibility finding was reasonable.
[16] The PA goes on to argue that the fact that he does not have a copy of the article can not be used against him, as obtaining an article from 1992 in Iraq is hardly easy.
[17] The applicants go on to argue that the Board erred in considering the PA's return to Iraq in 2000 sufficient as reavailment. The PA argues that more than mere presence is required for a finding of reavailment. The respondent argues that the Board's findings that the PA would not go back to retrieve his family if he feared for his life in Iraq was reasonable.
[18] The PA argues that the delay in leaving Iraq was purely economic, and should not be used to impugn his credibility. He says that travel documents for his entire family were prohibitively expensive. The PA says the prohibitive cost explains the delay in departure (from the incident in 1992 until departure in 1999). The respondent argues that the Board's finding that the PA's explanation of pure economic reasons was not plausible is a reasonably drawn conclusion.
[19] The applicants argue that if the Board's errors are individually insufficient to warrant an unreasonable decision then the cumulative effect of the errors is sufficient to send the matter back to a differently constituted tribunal for rehearing.
[20] The key finding in the Board's decision is its reliance on the applicants' counsel's innocent erroneous submission. The Board is deemed to have specific expertise in determining claims, yet it was unable to identify the counsel's error either during testimony or prior to writing the decision. The Board was supposed to have a specialized knowledge of the situation in the applicant's country of origin. However, by failing to point out the applicants' counsel's mistake regarding the Mandaean religion and by further failing to deal with the error in the decision, the Board, a supposed specialized tribunal, is owed minimal deference on the analysis of the conditions that exist for Mandaeans in Iraq. The finding that Mandaeans were Christians was not open to the Board given the Board's apparent expertise in the applicants' country of origin.
[21] Counsel for the applicants made the representation that the Mandaeans were, "a kind of sub sect," of Christians in Iraq (Tribunal Record p. 373), and directed the Board to assess the instant decision on another Refugee Protection Division decision on the persecution of minority religions in Iraq. The Board took this evidence of the applicants' counsel and dealt first with the conditions faced by the minority Christians in Iraq (Board's Decision p. 9-10) and then with the conditions specific to Mandaeans in Iraq, including the documentary evidence submitted by the applicants which the Board discarded (Board's Decision p. 11-15).
[22] The Board's mistake in treating Mandaeans as a sub sect of Christianity and performing an analysis based primarily on the treatment of Christians constitutes a reviewable error. In addition, the complete dismissal of all the documentary evidence was done without valid reasoning. The documents were dismissed as suspect vis-a-vis their neutrality and objective reporting because they came from the Internet.
[23] In the oral testimony, counsel for the applicants noted that the PA arrived at his office "with literally a thousand pages of documents" (Tribunal Record p. 369) from which he selected the most appropriate evidence that Mandaeans were mistreated. Counsel further submitted that Islamic societies tend to mistreat Mandaeans, characterising them as infidels and unclean.
[24] The applicants submit in their further memorandum of argument that the Board's description of the applicants as being "of the Mandaean Christian faith" undermines the reasons as a whole. I am inclined to agree. The applicant submits a decision of the Refugee Status Appeals Authority in New Zealand, which holds that the Mandaean religious faith is not Christian. While this court is not bound by the New Zealand decision, the facts in the New Zealand decision are clear and the specialized tribunal in the instant case made an error of fact - it referred to the Mandaeans as a small Christian religious group "based on the documentary evidence" on two occasions. The documentary evidence never referred to the Mandaeans as a Christian group - the evidence referred to Christians and Mandaeans as "united in suffering" and "cousins in faith". This erroneous finding constitutes a reviewable error.
[25] The Boards erroneous finding on the Mandaean religion is coupled with the disregard for the documentary evidence submitted by the applicants. Two of the documents (found at pp 191 and 195 of the Tribunal Record) outline the persecution faced by Mandaeans in both pre-war and post-war Iraq. An article entitled "Will the Mandaeans Survive Post-War Iraq?" is found at page 191 of the Tribunal Record. The article, dated July 24th 2003, notes that at least 80 Mandaeans have been killed since the fall of Baghdad. The Board completely disregarded the evidence of persecution in post-war Iraq, absent convincing evidence to the contrary.
[26] In Akhigbe v. Canada (Minister of Citizenship and Immigration), 2002 FCT 249, [2002] F.C.J. No. 332, Dawson J. dealt with treatment of evidence by the Board, at para 12:
¶ 12 At the same time, certain principles govern the treatment to be given to evidence by the CRDD. Some, relevant to this application, are:
i) When a claimant swears to the truth of certain allegations, a presumption exists that those allegations are true, unless there is reason to doubt their truthfulness. Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (F.C.A.);
ii) The CRDD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and is entitled to reject uncontradicted evidence if not consistent with the probabilities affecting the case as a whole. Aguebor v. Canada (Minister Of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.); Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (F.C.A.);
iii) While the CRDD may reject even uncontradicted testimony, the CRDD cannot ignore evidence explaining apparent inconsistencies and then make an adverse credibility finding. Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.);
[27] Since the Board did not have a grasp of the religion affecting the case as a whole, the Mandaean religion, it had no right the reject uncontradicted evidence such as the documentary evidence supplied by the applicants, absent evidence to the contrary. The Board found that the Mandaeans clearly faced persecution in pre-war Iraq (Decision p. 12) but, by discarding the applicants' evidence, it found no evidence of persecution in the post war society. As the evidence was unreasonably discarded, the Board's decision is unreasonable.
[28] Given the erroneous finding that Mandaeans are Christians and the dismissal of the documentary evidence, I would allow the application for judicial review.
[29] The application for judicial review is allowed and the matter is hereby returned for redetermination by a differently constituted panel.
Rouleau J.
JUDGE
OTTAWA, Ontario
April 21, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS : IMM-3939-04
STYLE OF CAUSE : Naman Saleem Thamir et al v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 12, 2005
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: April 21, 2005
APPEARANCES:
Mr. Michael Crane FOR THE APPLICANTS
Ms. Alexis Singer FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Michael Crane
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General
of Canada
Ottawa, Ontario FOR THE RESPONDENT