Ottawa, Ontario, November 7, 2005
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
1. Introduction
[1] The Applicant, Mary Michal, applies for judicial review of the May 11, 2004, negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) whereby the Applicant was determined not to be a Convention refugee nor a person in need of protection.
[2] The Applicant seeks to have the Board=s determination set aside and the matter referred back to a differently constituted panel for a new hearing.
2. Factual Background
[3] The Applicant is a 62-year-old citizen of Iraq. Before the Board, she testified that, as an Assyrian Christian, she was subject to harassment, discrimination and persecution. The Ba=ath Party, Saddam Hussein=s party, was allegedly interested in her husband joining their ranks and, when he refused to do so and left the family home in 1991, the Ba=ath authorities harassed and persecuted the Applicant. She claims that on several occasions she was pushed, slapped and punched.
[4] The Applicant states that she left her home in Turkuk and went to Zahko near the Turkish border, where she found her husband. They remained in Zahko for five years and subsequently left for Turkey. She alleges that her husband left Turkey in 1995 and she stayed until May 2002, at which time she came to Canada to seek asylum.
[5] The Applicant claims to have a well-founded fear of persecution by reason of religion and nationality. She also claims to be a person in need of protection by reason of risk to life.
[6] The hearing before the Board was held on April 19, 2004. The negative decision was rendered on May 11, 2004. Leave to commence this application was granted on June 7, 2005.
3. Impugned Decision
[7] The Board treated the Applicant=s claim as a refugee sur place claim in that conditions in Iraq have changed since the Applicant lived there. The Board noted that the general instability of Iraq was not its concern. Rather, it is called upon to ascertain whether the Applicant, as an individual or a member of a discernable group, could be targeted in Iraq. The Board noted, even if it had found the Applicant=s story credible, it had Ano idea@ whether the Applicant is married and, if so, whether her husband is alive. The Board did not find her credible and consequently concluded that she had not established a subjectively well-founded fear of persecution. The Board rejected the Applicant=s claim that she would be persecuted should she return to Iraq. Further, the Board held that the documentary evidence did not support an objective fear of persecution. While it established that the situation in Iraq is highly unstable, it did not show that the Applicant would be at risk as a woman and as an Assyrian Christian.
[8] In the result the Board stated that the Applicant is not a Convention refugee nor a person in need of protection and denied her claim.
4. Issue
[9] In her written submissions, the Applicant framed the issues as follows:
a. Did the Board violate the principles of natural justice by directing the Applicant to focus on whether she would be targeted upon returning to post-Saddam Iraq, and then, fails the Applicant (on the premise of credibility or plausibility findings) on events that she claimed happened to her prior to leaving Iraq?
b. Did the Board misconstrue the evidence of the Applicant, particularly her uncontradicted documentary evidence (of which the Board had no materials to refute) which clearly establishes that Christians, and particularly Christian women, are targets in Iraq, and in doing so, arrive at a patently unreasonable decision?
c. Did the Board, in making a number of plausibility findings that are not supported by evidence, make serious reviewable errors that merits the decision of the Board be set aside?
[10] In my view, the within application will turn on whether the Board erred in evaluating, in the context of the refugee sur place claim, the Applicant=s subjective and objective fear of persecution?
5. Preliminary Motion
[11] At the outset of the hearing the Applicant moved to correct an erroneous spelling of the Applicant=s name in the style of cause of the within proceeding, seeking an order that the style of cause be amended and the Applicant=s name be changed to read AMary Michal@. The Respondent consented to the motion. The motion was granted and an order will issue accordingly.
6. Analysis
[12] At the hearing of the within application, counsel for the Applicant, argued that the essential issue is whether the Board erred in failing to consider whether state protection was available to the Applicant should she be returned to Irak. I agree with the Respondent=s argument that, the issue of state protection need only be considered once the Board in satisfied that both the subjective and objective components of her fear have been established by the Applicant. If the Board is satisfied that the Applicant would not be at risk should she return to Irak, it does not err by failing to expressly deal with the issue of state protection. I will now proceed to consider whether the Board erred in considering the Applicant's refugee sur place claim.
[13] To be recognized a Convention refugee, a claimant must (1) subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. The subjective component relates to the existence of the fear of persecution in the mind of the claimant and the objective component requires that the fear be evaluated objectively to determine if there is a valid basis for that fear. The burden is on the Claimant to establish a Aserious possibility@ of persecution: Chan v. Canada, [1995] 3 S.C.R. 593 at paragraph 119.
[14] A person can be found to be a refugee sur place when the fear of persecution is triggered by circumstances arising in the country of origin during the claimant=s absence or as a result of the claimant=s own actions while outside the country of origin: Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 836.
[15] Counsel for the Applicant, at the hearing before the Board, did not take issue with the Board=s treatment of the claim as a sur place claim.
A) Subjective Fear
[16] The Board considered that the Applicant=s fear of persecution was not subjectively well-founded. It did not find credible the Applicant=s assertion that she still fears members of the Ba=ath Party. The Board did not find credible that ex-members of the Ba=ath Party would have any interest in a 62-year-old woman or her husband. Relying on the documentary evidence, the Board found that the Applicant=s husband would not have been of interest to the Ba=ath Party, an organization which recruited from the elite and did not force members to join its ranks. The Board found, based on documentary evidence, that membership in the Ba=ath Party was considered a privilege by Iraqis and such membership was only granted to the ideologically pure after strict character investigation. Further, the Board did not believe that the Applicant and her husband were able to relocate in Zahko without the Ba=ath Party following their trail if, as the Applicant had alleged, party members were pursuing her husband. The Board found implausible, in the circumstances, that former Ba=ath Party officials would target the Applicant.
[17] The Applicant argues that the Board, having accepted the claim as a sur place claim, breached the principles of natural justice by directing her, at the hearing, to focus only on events in present day Iraq and whether she would be targeted upon her return. The Applicant contends that the Board erred by then proceeding to dismiss her claim on negative credibility findings in respect to an event which occurred at the time she was in Irak under Saddam Hussein=s regime, which event the Board found never happened.
[18] I reject the Applicant=s argument. A careful review of the transcript of the hearing reveals that Applicant=s counsel, at the hearing, argued that there is a correlation or linkage between her past experiences in Irak under the Hussein regime and the present situation in Irak. The Applicant proceeded to testify about her circumstances at that time, including the alleged incident regarding her husband=s involvement with the Ba=ath Party. Given this evidence, the Applicant cannot now contend that the Board breached the principles of natural justice by considering this evidence. Further the fact that the Applicant=s case was treated as a sur place refugee claim does not mean that the Board was not entitled to assess the credibility of the evidence regarding the Applicant=s treatment before she left Iraq. The Applicant was clearly aware that evidence regarding her situation before she left Iraq was before the Board and it was appropriate for the Board to consider this evidence in assessing her credibility.
[19] It is accepted that the Board, an expert tribunal, is in the best position to assess the credibility of an applicant. Further, it is settled law that finding of facts and credibility determinations are reviewable on the patent unreasonableness standard: Aguebor v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No 732 (QL); R.K.L. v. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 162 (QL).
[20] Having regard to the Board=s credibility findings, and having read the decision as a whole and considered the evidence before the Board, the Applicant=s testimony and the parties= submissions, I am of the view that the Board=s findings were not patently unreasonable and are supported by the evidence before it. In consequence, I find that the Board did not err in making its credibility findings.
B. Objective Fear
[21] The Board held that the Applicant=s fear of persecution was not objectively well-founded. The Board recognized that, in post-war Iraq, Christians generally and Assyrian Christians particularly form a minority. However, the Board found that the evidence did not support the Applicant=s contention that Assyrian Christians were being targeted as a group nor that the Applicant would face a serious possibility of persecution.
[22] The Applicant submits the documentary evidence supports her fear that Muslims are targeting and killing Christians in Irak. The Applicant contends the Board was inconsistent in its reasons by stating that there is some evidence about Christians being killed but found that the documentary evidence fell short of establishing that Christians generally are being persecuted. The Applicant contends that the documentary evidence she tendered clearly indicates, and supports her fear, that the Christian minority would be vulnerable to Shiite Muslims, even after the American troops withdraw from Iraq. Further, in support of her argument, the Applicant points to other evidence establishing that women are forced to wear the veil are vilified and refused hospital treatment.
[23] In essence, the Applicant argues that the Board failed to properly consider and assess the documentary evidence adduced, particularly the two reports from Amnesty International tendered on the day of the hearing, which the Applicant says clearly support her claim. The Applicant contends that the documentary evidence establishes that since the fall of the Hussein regime, matters have worsened for Christian women in Irak. It is the Applicant=s position that cumulatively the documentary evidence supports her argument and the Board erred by failing to deal with this evidence.
[24] The Board accepted that the situation in Iraq was highly unstable and this instability presented a generalized risk to the population, but not a particular risk to the Applicant warranting protection in her particular circumstances. In its reasons, the Board expressly dealt with the documentary evidence indicating persecution of certain Christian owners of liquor stores. The article entitled AFour Christian Women Killed in Iraq@was also considered but the Board found that there was no indication that these women were killed because they were targeted as Christians. The Board also dealt with documentation illustrating the difficulties of Christian women in select urban communities being forced to wear a veil; it held that there was no reliable documentary evidence of this being a universal problem in Iraq. The Board found that the Auncertainness@ being felt by Assyrian Christians in Irak, as reflected in the evidence, Afalls well short@ of establishing persecution.
[25] Upon reviewing the documentary evidence before the Board and having considered the submissions of the parties, I am satisfied that the Board=s conclusion is well founded. I am satisfied that the Board did have regard to the evidence before it and it did not err by failing to expressly deal with all of the documentary evidence in its reasons. In assessing this evidence it was open to the Board to conclude as it did. It is not for this Court, in the context of a judicial review application, to re-weigh the documentary evidence. That is the task that falls squarely within the purview of the Board. On judicial review, the question is not whether the Court would have decided the case in the same way, rather the question is whether, on application of the applicable standard of review, the Board committed a reviewable error. In the circumstances, upon review of all of the evidence, I find that the Board did not err in finding that the evidence was insufficient to establish an objectively well-founded fear of persecution, or that the Applicant was a person in need of protection.
7. Conclusion
[26] For the above reasons, the application for judicial review will be dismissed.
[27] The parties have had the opportunity to raise a serious question of general importance as contemplated by paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I am satisfied that no serious question of general importance arises on this record. I therefore do not propose to certify a question.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is dismissed.
2. The style of cause is amended to reflect the correct spelling of the Applicant=s name, AMary Michal@.
3. No question is certified.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9155-04
STYLE OF CAUSE: Mary Michal v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 29, 2005
REASONS FOR ORDER AND ORDER: Blanchard J.
APPEARANCES:
Omar Shabbir Khan FOR THE APPLICANT
Catherine Vasilaros FOR THE RESPONDENT
SOLICITORS OF RECORD:
Omar Shabbir Khan FOR THE APPLICANT
Hamilton, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada