Date: 20040721
Citation: 2004 FC 1020
BETWEEN:
SULTAN AHMAD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Refugee Division of the Immigration and Refugee Board (the "Panel") denied Mr. Ahmad's application on the basis of several inconsistencies in his evidence and on the basis that there is state protection in Pakistan.
[2] Mr. Ahmad says that the Panel's conclusions are patently unreasonable. I cannot agree.
Background
[3] Mr. Ahmad is a 25 year old Shia Muslim of Pakistani citizenship. He claimed that Sunni Muslims in his village, assisted by government agencies, threatened and attacked members of his religion and more persecution he and members of his family. He also claimed that close associates were killed, that he was kidnapped and that prior to release, he was again threatened with death.
[4] Mr. Ahmad came to Canada via the United States. Upon his arrival here, he claimed a well founded fear of prosecution on the grounds of his religion, his Shia Muslim beliefs.
[5] The Panel denied his application; holding that his story lacked credibility and plausibility as well as that he failed to rebut the presumption of state protection.
[6] The Panel was particularly concerned that a number of incidents which arose in oral evidence at the hearing were not even touched upon in his PIF or alternatively described in a materially different manner, particularly:
(1) Failure to mention the attack on his home and the damage caused during Sunni inspired rioting;
(2) Failure to mention that he had complained to the police about the attack and damage, and that the police refused to file a First Information Report;
(3) Failure to mention that he had gone to the police with Shia elders to complain about the murder of 2 associates, and, that the police had abused and mistreated both him and the elders;
(4) The different description of his kidnapping especially whether he was taken to a specific place, or, whether he was driven around and not to any particular destination.
(5) Failure to mention that he played a prominent leadership role in the local Shia community.
(6) The inconsistency of description of the reason for the fire bombing of an associate's home;
[7] Mr. Ahmad also complains that the Panel gave no weight to a letter from his father. The Panel stated that the letter was undated and that his father was not a disinterested party. For these reasons, the Panel discounted its contents.
[8] The Panel also rejected a psychologist's report of Mr. Ahmad's Post-Traumatic Stress Disorder because the report was based on facts supplied by Mr. Ahmad facts which the Panel had found not to be credible.
[9] Lastly, Mr. Ahmad complains that the Panel erred in its conclusion that state protection existed for Shias. The thrust of that complaint is that, the Panel ignored evidence of continuing religious violence reported in the 2002 DOS Report, whereas the Panel had considered the 2001 version of that report.
[10] Mr. Ahmad submits that these reasons, particularly taken cumulatively, undermine the deference owed to the Panel. He asks that the decision be quashed.
Analysis
[11] This is a classic credibility case. Although the Immigration and Refugee Board is required to accord an applicant the presumption of truthfulness, it is not required to ignore inconsistencies, implausibilities, or to ignore common sense and its own expertise.
[12] While the standard of review for credibility findings is patently unreasonableness, the standard of review with respect to the Panel's analytical framework is correctness. The applicant says that the Panel engaged in a microscopic examination of the evidence and undertook, with excessive zeal, the exercise of finding contradictions.
[13] The Panel and the parties made a great deal of either how important, or unimportant, the inconsistencies were, as between the oral evidence and the PIF. The applicant correctly points out the PIF is a brief recitation of the claim not a documentation of the whole claim. See Singh v. Canada (Minister of Employment and Immigration) [1993] F.C.J. No. 1034.
[14] However, the PIF form instructs that an applicant "Provide Significant Information". In Bains v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 1144, the Court, which recognizing that an applicant can quite properly omit minor events from the PIF, did acknowledge that significant incidents are to be recounted. In this case, were the contradictions and inconsistencies significant?
[15] The failures to mention the two incidents involving the police are critical. Firstly, if the events happened, they show aspects of persecution on religious grounds, especially where the Shia elders were abused and mistreated. Secondly, such events go to the issue of state protection, and, are material to rebutting the presumption in favour of the existence of state protection.
[16] Mr. Ahmad had counsel; his PIF could have been amended up to the beginning of the hearing - it was not. Failure to mention these events, when complaints about police action or inaction is a common theme of many refugee claims, is a failure to mention a significant event.
[17] The difference in descriptions of the kidnapping event also raises an issue of "significance". One version has Mr. Ahmad blindfolded and driven around without stopping. The other version has him stopping at an unknown location, and, a discussion by his captors with him about his release. It was not unreasonable for the Board to question the plausibility of the events, given those two versions.
[18] Since all the circumstances taken into account in regard to credibility and plausibility were reasonable and relevant, the Panel's ultimate conclusion cannot be held to be patently unreasonable.
[19] The weight given the psychologist's report is a matter of discretion. The report details that the author relied on the events as described by Mr. Ahmad. If those events are found to be not credible, then the value of the report is undercut. It is for the Panel, and not the psychologist, to make conclusions of credibility as part of its fact finding function. The psychologist cannot usurp this fact finding function.
[20] Mr. Ahmad's father's letter was given little weight on two grounds. If the Panel erred in any respect it was in not accepting the explanation for the failure to date the letter. The reason for not dating a letter is a matter of cultural norms. A letter of a parent on behalf of a child is rightly regarded as something less than objective.
[21] Finally, with respect to state protection, that issue must be resolved on the standard of reasonableness simplicitur Cihal v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 577.
[22] Had the Panel relied exclusively on the 2001 US DOS Report and ignored facts which were detailed in the 2002 version, the decision on this point would be problematic. However, the Panel relied on the UK Home Office assessment of April 2002, which assessment referred to many of the same circumstances as the 2002 US DOS Report.
[23] Lastly, the finding on state protection also turns on the credibility of Mr. Ahmad's account of incidents with the police. Since credibility is in doubt, it was reasonable for the Panel to conclude that Mr. Ahmad had not rebutted the presumption of state protection.
[24] For all these reasons, this judicial review will be dismissed.
[25] The parties acknowledge that there is no issue to be certified.
"Michael L. Phelan"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5224-03
STYLE OF CAUSE: SULTAN AHMAD
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 19, 2004
REASONS FOR
JUDGMENT BY: PHELAN, J.
DATED: JULY 21, 2004
APPEARANCES BY:
Joseph S. Farkas For the Applicant
Michael Butterfield For the Respondent
SOLICITORS OF RECORD:
Joseph S. Farkas
Barrister & Solicitor
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent