20050324
Ottawa, Ontario, March 24, 2005
Present: The Honourable Mr. Justice Blais
BETWEEN:
SALIM MOHAMED KHAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated March 12, 2004 in which the Board determined that Mr. Salim Mohamed Khan (the applicant) was not a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of the Act.
FACTS
[2] The applicant is of East Indian (Indio-Guyanese) descent, and is a citizen of Guyana. He claims to have always felt discriminated against and persecuted by supporters of the opposition PNC party in Guyana who are predominantly Afro-Guyanese.
[3] In February 1997, the applicant claims to have been badly beaten and robbed by Afro-Guyanese, requiring two weeks of hospitalization. This incident was reported to police, who stated they were short of staff and could not investigate.
[4] One of the applicant's brothers was found hanging from a tree, murdered and his body defaced for political and ethnic reasons. The police refused to investigate, dismissing the case as a suicide. The applicant also claims that a few years later, thugs set fire to the home of one of his brothers; when reporting it to the police, they detained and beat him for two days for "annoying" them.
[5] The applicant also claims to have been the victim of an incident with some of his friends, when they were attacked by thugs. All of his friends were allowed to flee, but he was detained for two days and beaten. When another of the applicant's brothers heard of the beating, he went out to find the applicant but died on the way of a heart attack. The applicant then decided to leave Guyana. He arrived in Canada on September 23, 2002, and made a refugee claim that same day.
ISSUE
[6] Did the Board err in its analysis of the applicant's credibility, or in its analysis of the possibility of adequate state protection?
ANALYSIS
[7] The applicant claims that the Board used too high a standard of review by indicating in its reasons for decision that "A claim for refugee protection shall be rejected if a claimant was left [sic] the country of reference and returns to [it] while they are being persecuted unless they have compelling reasons for doing so." (See the reasons for decision of the Board dated March 12, 2004 at page 2.)
[8] I fail to see how the standard of review was affected by the Board's statement, seeing as to how it was simply citing section 108 of the IRPA:
| 108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:
(a) the person has voluntarily reavailed themself of the protection of their country of nationality;
(b) the person has voluntarily reacquired their nationality;
©) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;
(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or
(e) the reasons for which the person sought refugee protection have ceased to exist.
(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).
(3) If the application is allowed, the claim of the person is deemed to be rejected.
(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.
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108. (1) Est rejetée la demande d'asile et le demandeur n'a pas qualité de réfugié ou de personne à protéger dans tel des cas suivants :
a) il se réclame de nouveau et volontairement de la protection du pays don't il a la nationalité;
b) il recouvre volontairement sa nationalité;
c) il acquiert une nouvelle nationalité et jouit de la protection du pays de sa nouvelle nationalité;
d) il retourne volontairement s'établir dans le pays qu'il a quitté ou hors duquel il est demeuré et en raison duquel il a demandé l'asile au Canada;
e) les raisons qui lui ont fait demander l'asile n'existent plus.
(2) L'asile visé au paragraphe 95(1) est perdu, à la demande du ministre, sur constat par la Section de protection des réfugiés, de tels des faits mentionnés au paragraphe (1).
(3) Le constat est assimilé au rejet de la demande d'asile.
(4) L'alinéa (1)e) ne s'applique pas si le demandeur prouve qu'il y a des raisons impérieuses, tenant à des persécutions, à la torture ou à des traitements ou peines antérieurs, de refuser de se réclamer de la protection du pays qu'il a quitté ou hors duquel il est demeuré.
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[9] Furthermore, the Board did not reject the applicant's claim solely on the above section but also assessed his overall credibility and examined whether adequate state protection existed.
In the alternative, the panel considered whether the claimant established his claim by presenting truthful and credible evidence. The panel finds that the claimant has failed in this regard for the following reasons
...
Therefore, I find that even if the claimant faces a risk of harm as contemplated in ss. 96 and 97(1) of the Act, he has not rebutted the presumption of state protection. I find that adequate state protection is available to the claimant.
(See the reasons for decision of the Board dated March 12, 2004 at pages 3 and 8.)
[10] The Board's overall analysis of the claim lead me to conclude that the standard of proof was in no way applied at a level higher than that justified, and if anything, a lower threshold was applied by citing many alternative reasons for which the Board felt that the applicant's claim should be dismissed.
[11] In Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), it was determined that a well-founded fear of persecution included both a subjective fear in the mind of a refugee, as well as an objective evaluation to determine if there is a valid basis for that fear.
[12] Although the applicant relies on Owusu-Anash v. Canada (Minister of Employment and Immigration) (1989), 98 N.R. 312, to support his submission that it is reasonable not to seek protection in Brazil because he preferred to do so in an English speaking country, I find that the reasoning by the Court in Owusu-Anash, was that the Board had erred in not mentioning and dealing with the reasons which the applicant submitted for not having claimed refugee status in countries he had visited before coming to Canada:
There remain the failure to stay in Togo or Nigeria, the related failure to claim to be a refugee there or in Brazil, and the discrepancies as to the questioning in custody and work in Nigeria. This is not a game of numbers but, it seems to me, when the Board has found numerous reasons for doubting a claimant's credibility and was patently wrong in selecting a significant majority of them, it must be clear to a reviewing authority that those remaining were properly considered. That is by no means clear here. Explanations which, to say the least, were not obviously implausible were offered and were simply not dealt with by the Board in its decision. The failure to take account of material evidence has been variously characterized by this Court in allowing s. 28 applications. (Owusu-Anash v. MEI, supra) [my emphasis]
[13] In the case at hand, the applicant gave three reasons for which he did not claim refugee status in Brazil. Those reasons were all identified in the reasons of the Board, and rejected as implausible. The applicant claimed that he did not speak Portugese and did not want to claim refugee status in a country where he did not speak the language; the Board mentioned that a person with a well-founded fear would make a refugee claim at a border post that they crossed at, regardless of the language spoken in that country. I do not find the reasoning of the Board to be unreasonable. As for the other two arguments, that the city he was visiting was too small, and that it probably did not have a government office, it should be mentioned that the applicant did not even inquire as to the possibility of making a claim, even though Manaus, the city which he was visiting, is a big city and has a large population, as admitted by counsel at the hearing.
[14] Re-availment as an indicia of lack of subjective fear is not a new concept. Rather, it has often been mentioned and applied as a criterion in determining a claimant's credibility:
It is quite proper for the Refugee Division to take the plaintiff's actions into account in assessing his subjective fear. It is reasonable for it to conclude that the fact he returned to the country where he feared persecution makes the existence of such a fear unlikely (see Rached v. M.C.I., A-859-91, January 18, 1996; Wey v. S.S. Canada, IMM-2758-94, February 21, 1991; Safakhoo v. M.C.I., IMM-455-96, April 3, 1997; Bello v. M.C.I., IMM-1771-96, April 11, 1997). (Kabengele v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1866 at paragraph 41)
[15] Furthermore, the fact that the applicant visited Brazil, a country signatory to the 1951 Refugee Convention, but did not submit a refugee claim can also be a factor in assessing the subjective aspect of an applicant's claim. (Ilie v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1758; Ali v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 558; Skretyuk v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 783; Handzo v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1125)
[16] As for the applicant's claim that the Board imposed "Canadian Standards", he gave no support to back his assertion, and my reading of the Board's decision leads me to believe that it made reasonable findings based on common sense and rationality. The Board mentioned that:
The panel has no reason to doubt the authenticity of the death certificate, which states the claimant's brother died by hanging. However, the panel does not find he was hung for the reasons stated by the claimant. It is implausible that the police in Guyana would not take a report, and conduct an investigation of the death of a person hung in the public manner that the claimant testified. (See the reasons for decision of the Board dated March 12, 2004 at page 4.)
[17] Given that the applicant testified that his brother's ear was cut off, and that the body was badly bruised and beaten, I find it reasonable for the Board to have determined it more than likely that the police would have investigated this incident, especially in light of the Board's comments as to the police force in Guyana:
The evidence before me is not clear and convincing that the government of Guyana is unwilling or unable to investigate, arrest and punish perpetrators of crime or that Guyana, a democratic state, is not in effective control of its territory and institutions. There is evidence that the government is making serious efforts to combat violent crime in Guyana. The president has stated publicly that the fight against crime remained a top priority for his government. The government has funded the purchase of new supplies of arms, ammunition, and protection gear for police, allocated 10% of its 2003 budget to fighting crime and national security, and set up joint army and police patrols in order to capture those responsible for increased criminal activity in areas such as the town of Buxton. (See the reasons for decision of the Board dated March 12, 2004 at pages 7 and 8.)
[18] Furthermore, the Board gave the applicant an opportunity to explain how it was that he was involved in this alleged political persecution. The applicant responded that it was his family ties which had placed him in this situation, but was unable to give much detail on the subject:
PRESIDING MEMBER: But I'm trying to tie it to your political things that you're telling me and I don't see a link and you told me that when they beat you they don't say it's because you're a member of the PPP. So where is the link?
CLAIMANT: The link is due to my brother, sir.
PRESIDING MEMBER: Was your brother in the PPP?
CLAIMANT: Yes, sir.
PRESIDING MEMBER: And what did he do for them?
CLAIMANT: The PPP?
PRESIDING MEMBER: Mm-hmm?
CLAIMANT: Well, he was like, you know, in the village where we live in, he was, you know, the PPP just came certain people you know, for tell them what to do, how to behave if the PNC attack you and these things.
(See transcript of hearing dated February 4, 2004.)
[19] The fact that the Board gathered all of the implausibilities it perceived, and rendered its decision based partly on these findings is entirely within its field of expertise, as it is within the Board's function to assess plausibility. As was stated by Justice Sharlow in Lorena Gonzalez v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 805:
In my view, it was open to the CRDD to assess the plausibility of the applicant's conduct as it did, by considering her story, and the manner in which it was told and tested in the course of the hearing, against the backdrop of other evidence and its own understanding of human behaviour. The comments of O'Halloran J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357 (B.C.C.A.) reflect my view:
In short, the real test of the truth of the story of a witness ... must be its harmony with the preponderance of the probabilities which a reasonable and informed person would readily recognize as reasonable in that place and in those conditions.
I see nothing in the Giron case that is inconsistent with this conclusion. In this regard, I refer to the comments of Décary J.A. in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.) at 316-7:
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.
From this it is clear that determinations as to the plausibility of human conduct are within the jurisdiction of the CRDD. If evidence relevant to the question is offered, for example in the form of an expert report of a psychologist or sociologist, the CRDD is obliged to consider it along with the other evidence before it. However, I do not accept that such evidence is required in every case, or in this case. I find no reviewable error in the CRDD's finding on plausibility. (Lorena Gonzalez v. Canada, supra, at paragraphs 27-29) [my emphasis]
[20] The Board had enough evidence before it to properly conclude that the subjective element of the claim was lacking, and as such, that it warranted dismissal of the claim. (Kamana v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1695; Ayub v. Canada (Minister of Citizenship and Immigration), 2004 FC 1411; Akacha v. Canada (Minister of Citizenship and Immigration), 2003 FC 1489)
[21] As for the possibility of adequate state protection, I would simply add as a final comment that in addition to the extracts from the reasons for decision relating to the police force, the Board made note of the fact that the President of Guyana is himself Indo-Guyanese, and that the government is led by the PPP, a party supported primarily by those of Indo-Guyanese ethnicity. It was reasonable to assume that Guyana did provide adequate protection, especially in view of the fact that the applicant had not rebutted the presumption of state protection by clear and convincing proof:
Concerning the issue of state protection, I am satisfied, upon reviewing the evidence, that the Board did not err in finding that the applicant had failed to rebut the general presumption that the state is able to provide protection to its citizens, given the lack of clear and convincing evidence of the state's inability to do so (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). (Bordas v. Canada (Minister of Citizenship and Immigration), 2004 FC 9, [2004] F.C.J. No. 65 at paragraph 5)
[22] For all of the above mentioned reasons, I find that the Board did not err in its evaluation of the applicant's credibility, nor did it err in its assessment of the implausibilities presented to it. Furthermore, I find that the Board properly concluded that the presumption that state protection can be afforded to the applicant had not been rebutted.
ORDER
THIS COURT ORDERS THAT:
- The application for judicial review be dismissed;
- No question of general importance be certified.
"Pierre Blais"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3266-04
STYLE OF CAUSE: SALIM MOHAMED KHAN v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: March 10, 2005
REASONS FOR ORDER AND ORDER : Mr. Justice Blais
DATED: March 24, 2005
APPEARANCES:
Mr. Ahmad N. Baksh FOR PLAINTIFF / APPLICANT
Mr. Stephen H. Gold FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Mr. Ahmad N. Baksh
Barrister and Solicitor
North York, Ontario FOR PLAINTIFF/APPLICANT
John H. Sims Q.C.
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario FOR DEFENDANT/ RESPONDENT