Federal Court Decisions

     IMM-4162-96

BETWEEN:

     ABDUL HAQUE

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     & IMMIGRATION

     Respondent

     REASONS FOR ORDER

GIBSON, J.:

     These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") wherein the CRDD determined the Applicant not to be a Convention refugee within the meaning assigned to that term by subsection 2 (1) of the Immigration Act¹. The decision of the CRDD is dated the 23rd of October, 1996.

     The Applicant is a citizen of Pakistan. He bases his claim to Convention refugee status on an alleged well-founded fear of persecution if he is required to return to Pakistan by reason of his religion and membership in a particular social group. He alleges that he is a member of the Lahore Ahmadi religion.

     In relatively brief reasons, a significant portion of which are devoted to a recitation of the reasons for delay in the Applicant's application coming on for hearing before the CRDD, it concludes:

In conclusion, the panel finds after examining all the evidence that the claimant has not provided credible or trustworthy evidence to make a finding of a well-founded fear of persecution for any Convention reason. He [the applicant] is not a credible witness.

     Counsel for the Applicant urged three bases on which the application for judicial review should be granted:

1.      that the CRDD demonstrated a reasonable ground for an apprehension that it was biased in deciding against the Applicant;

2.      that the CRDD erred in its determination with respect to the credibility of the Applicant; and

3.      that the CRDD erred in failing to consider and make reference in its reasons to a case-specific document that is evidence directly relevant to the central issue addressed in its decision.

     In her reasons, the presiding member of the CRDD wrote:

The case was referred to the Refugee Division on 15 September, 1994. The Immigration Act, at s. 68 (2) directs the Refugee Division to hear cases expeditiously. The record will show this was not the case. We find some of the claimant's actions throughout the hearing border on abuse of the system.

     The presiding member does not identify the particular actions of the Applicant to which her concern is addressed. More particularly, it is difficult to identify what actions "throughout the hearing" itself she might be referring to. The reference is more likely a reference to actions that preceded the hearing.

     The presiding member's colleague on the panel did not agree. She wrote:

While I concur with the decision of my colleague in the claim before us, I must respectfully disagree with one comment stated in her analysis.

....I can find no indication that the claimant's actions were a significant contributor to the delays involved in the claim. A more salient factor, in my view, has been the lack of co-ordination among various parties responsible for providing and verifying their required documents.

Having examined all of the evidence before me, and for the reasons set out by my colleague, I find the claimant not to be a Convention refugee.

     The test for reasonable apprehension of bias is generally agreed to be whether or not an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision-maker would unconsciously or consciously decide an issue unfairly.²

     In de Freitas v. The Minister of Employment & Immigration³, the Federal Court of Appeal held that "intemperate comments" by the presiding member of the CRDD panel, made at the outset of the hearing, and continued throughout the hearing, raised a reasonable apprehension of bias. One of the presiding member's comments, as cited by the Court of Appeal, was in the following terms:

Personally I read your file twice. And in 20 years that I am on the Bench I find this case to be so frivolous that I wonder sometimes how much people do abuse the system. I would just like to comment on this particular point and with reasons.

     Those comments were, in my view, much more indicative of prejudgment than those made by the presiding member here. Further, they were made at the outset of the hearing, not in reasons for decision prepared after the hearing was completed. The contrast to the situation here is marked. It is not alleged that the presiding member made "intemperate comments" in the course of the hearing of the Applicant's claim. Rather, the only comment alleged to raise concern is that cited in the reasons and it appears following the analysis on which the CRDD's conclusion is based and immediately before the CRDD's conclusion itself. Whatever may have been the motivation for the presiding member's statement that is objected to, I conclude that it does not constitute a basis for a reasonable apprehension of bias.

     I turn then to the CRDD's determination regarding the credibility of the Claimant. The CRDD wrote:

The basis of the claim is outlined in the narrative item 37 of his [the Applicant's] PIF attached to these reasons. His testimony was consistent with what was written there.

The panel finds that the central issue is the credibility of the claimant and the verification of his identity as a member of the Ahmadiyya Anjuman Lahore.

Therefore the panel will not summarize the claimant's testimony and will only comment on the evidence as it relates to these issues.

The panel assessed whether the claimant was honestly endeavoring to tell the truth. We have considered individual personality traits, cultural factors and the fact that the evidence was adduced through the help of an interpreter. The panel made its assessment in the context of the evidence adduced by the claimant and in light of what is generally known about the conditions in the claimant's country.

The Minister's investigation discloses that Ahmadiyya Anjuman Lahore has found the claimant's membership document and receipt to be forgeries. According to correspondence from Dr. Noman Malik, the claimant is not a member of Ahmadiyya Anjuman Lahore.

The panel places significant weight on Dr. Noman Malik's testimony.

     After explaining its rationale for giving "significant weight" to Dr. Malik's testimony, and preferring it to evidence supporting the Applicant's evidence that he is a member of the Lahore Ahmadi group, the CRDD concludes in the following terms:

In conclusion, the panel finds after examining all the evidence that the claimant has not provided credible or trustworthy evidence to make a finding of a well-founded fear of persecution for any Convention reason. He is not a credible witness.

     While the analysis leading to the CRDD's conclusion with regard to the Applicant's credibility is less thorough and compelling than what one might wish for, I am satisfied that it is sufficient to support its conclusion.

     In Aguebor v. Ministre de l'Emploi et de l'Immigration⁴Mr. Justice Décary wrote:

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?

     In terms adopted by Mr. Justice Décary, I am satisfied that the conclusion of the CRDD regarding the credibility of the Applicant and of evidence presented by him or on his behalf is "...not so unreasonable as to warrant [the] intervention..." of this Court.

     Finally, I turn to the issue of failure to consider relevant and case-specific evidence.

     In Atwal v. Canada (Secretary of State)⁵, I wrote:

It is trite to say that a Tribunal is not obliged to refer in its reasons for decision to all of the evidence that was before it. The fact that a Tribunal fails to do so does not, in ordinary circumstances give rise to a conclusion that the Tribunal has failed to take into account all of the evidence that is before it. But I conclude that that principle does not apply to a failure to make reference to a case-specific document that is evidence directly relevant to the central issue addressed in the Tribunal's decision.

     The central issue in the decision of the CRDD in this matter was the credibility of the Applicant, particularly as it related to his membership in the Lahore Ahmadi religion. The Applicant presented as part of his evidence an alleged official Government of Pakistan Certificate, dated the 3rd of December, 1990, detailing certain information regarding his army service in Pakistan and clearly stating his religion to be "Ahmadi". The CRDD sought verification of this document, which could only be considered to be a reasonable step, given the fact that other documentation presented by or on behalf of the Applicant was determined by sources the CRDD found credible, to be forged. After the Applicant's claim had been before the CRDD from the 15th of September, 1994 to the 21st of June, 1996 when the CRDD convened for a second time to hear the claim, verification was not available. The 13th of August, 1996 was set for a further resumption to receive verification. The CRDD finally determined not to await verification. It wrote:

The panel decided that a decision could be made without the information sought. If the information arrived before a decision was rendered, the evidence forthwith would be considered.

     Apparently the information had not arrived when the decision was rendered on the 23rd of October, 1996.

     By section 8 of the Immigration Act, where a person seeks to come into Canada, whether as a Convention refugee claimant or otherwise, the burden of proving that the person has a right to come into Canada or that his admission would not be contrary to the Immigration Act or the regulations made thereunder rests on that person. Here, the Applicant was aware that the CRDD, itself, had undertaken verification of the authenticity of certain of the documentation presented by him. That did not relieve the Applicant of the burden placed on him to make out his case. For whatever reason, he chose to leave the question of verification to the CRDD. Certainly no evidence was referred to in the hearing before me to indicate that the Applicant himself sought out verification of the authenticity of the documentation in question. In the circumstances of this matter then, I conclude that the position I took in Atwal does not apply. There is no doubt that the documentation in question was case-specific and that it was evidence directly relevant to the central issues addressed in the CRDD's decision. However, the Applicant did not produce verification of the authenticity of the document when he knew that its authenticity was in question. Further, the CRDD itself made reasonable efforts to determine the authenticity of the document. In the absence of a response to its inquiries, and with other evidence before it going to the issue of whether or not the Applicant was a member of the Lahore Ahmadi religion, I conclude that the CRDD made no reviewable error in determining, after the lapse of time that was allowed, that it would proceed without reference to the unverified documentation.

     Based upon the foregoing analysis, I conclude that this application for judicial review should be dismissed. At the close of the hearing, I consulted counsel on the issue of certification of a question. Neither counsel recommended certification of a question. No question will be certified.

    

                                     Judge

Ottawa, Ontario

June 19, 1997

__________________

     ¹      R.S.C. 1985, c. I-2

     ²      See: Committee for Justice and Liberty et al. v. National Energy Board (1976), 68 D.L.R. (3d) 716 (S.C.C.)

     ³      (1989), 8 Imm. L.R. (2d) 60 (F.C.A.)

     ⁴      (1993) 160 N.R. 315 (F.C.A.)

     ⁵      (1994), 82 F.T.R. 73 (F.C.T.D.)