Date: 20040219
Docket: IMM-1132-03
Citation: 2004 FC 252
Ottawa, Ontario, this 19th day of February, 2004
Present: The Honourable Justice James Russell
BETWEEN:
MUHAMMAD ARIF MIRZA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Ms. Deborah Lamont of the Refugee Protection Division of the Immigration and Refugee Board ("Panel"), dated February 4, 2003 ("Decision"), wherein the Panel found that Mr. Muhammad Arif Mirza ("Applicant") was not a Convention refugee nor a person in the need of protection.
BACKGROUND
[2] The Applicant is a 28-year-old citizen of Pakistan. He arrived in Toronto via the United Kingdom on August 10, 2002. He travelled with a false passport that he returned to his agent when he arrived in Canada. He did not state his intention to make a refugee claim until over a month after arriving in Toronto. He did so in Calgary on September 16, 2002.
[3] In Pakistan, the Applicant was Information Secretary of a political party known as the Pakistan Muslim League ("PML"). He says he suffered persecution in Pakistan for his political opinions from the opposition political party known as the PPP, as well as the police and the military government. He alleges that his agents of persecution included PPP gangsters.
[4] The Applicant submits that during the month of May 1998, municipal elections were held during which he campaigned in support of Mir Kabeer, the PML candidate, and as a result of this participation he received threats and was attacked by gangsters. He alleges that he reported this matter to the police, but they failed to provide any meaningful protection.
[5] In December 1999, the Applicant alleges that he organized a protest condemning military actions and asked for the release of the prime minister, who was in detention at that time. On this occasion, the Applicant gave a speech and, along with several other activists, was arrested and detained by police for about three days during which period he was beaten. He was able to secure his release by paying a bribe.
[6] Following that detention, the Applicant was detained on three more occasions up to July, 2002. At that point, he felt that the political situation had become too tense and, fearing arrest, he went into hiding. Shortly thereafter he left Pakistan and, on August 10, 2002, came to Canada. After the Applicant came to Canada he found out that the police in Pakistan had issued a warrant for his arrest.
DECISION UNDER REVIEW
[7] The Panel had serious credibility concerns with the Applicant's identification documents:
The claimant's identity as a national of Pakistan has been established by his testimony and his documents submitted including a National Identity Card.
The claimant was asked to explain why the panel is only receiving his identity documents, political membership documentation, and the evidence regarding charges against him in January 2003. The claimant testified he asked his brother to obtain the required documents, and his whole family has moved to Azad Kashmir, and his brother will only travel back and fort to Gujrat during the day, as he is in fear. The claimant was asked when his family moved to Azad Kashmir, and he testified in December 2002. The panel found his explanation unreasonable, as the FIR is dated July 6, 2002, the arrest warrant was dated August 10, 2002, his family only moved in December 2002, and the claimant made his claim on September 16, 2002. The panel determined the claimant could have obtained and submitted his identity documents, party membership documents, the FIR and arrest warrant earlier, especially in light of the fact some of these documents were faxed from Pakistan.
The panel found the claimant did not demonstrate reasonable diligence before the hearing in trying to overcome or address the lack of proper documentation or corroboration. The panel noted the only identity document submitted before the hearing was the claimant's National Identity Card, and his counsel appeared with him during the claimant's interview with immigration officials on September 16, 2002. The panel also noted that counsel for the claimant submitted the above documents on January 21, 2003, however, they were returned to counsel, as they were not in the proper format to be submitted. The claimant was given clear notification that identity documents were required, and the panel finds the claimant's effort to provide the documents earlier than January, to be unreasonable. The panel noted on the screening form, dated November 15 2002, it clearly states personal identity is an issue, and further stated the claimant is to provide:
Medical evidence of injuries sustained due to beatings and "torture"
FIR and arrest warrant(s)
Evidence of PML membership and activities undertaken on behalf of the party
Corroborative evidence of all elements of the claim
Counsel for the claimant made an application to be given time after the hearing to submit the originals of the FIR, arrest warrant, and proclamation on behalf of his client, and the panel denied the application. The panel rules that the production of the originals was not going to affect the panel's analysis of his claim.
[8] The Panel also noted a number of further discrepancies in the Applicant's evidence:
The claimant was asked to explain why within his statement to immigration officials he contradicted himself when he indicated he had not been detained or jailed in Pakistan, and in other documents he claimed he had been detained and jailed. The claimant testified the interpreter must have made a mistake, perhaps he did not understand him clearly.
Further, the claimant was asked to explain the discrepancies in his evidence when he alleged he was arrested and/or detained by authorities in Pakistan. Within statements to immigration officials, on September 16, 2002, with counsel present, the claimant was asked if he had been arrested/detained by the police/military in his country. At that time, he claimed he was detained in February 2002 for five or six hours to stop him for participating in rallies, the panel noted the claimant omitted the February 2002 detention in his PIF narrative. Further, he indicated he was detained one night and beaten in July 2002. The panel noted there is no mention in his PIF narrative of the claimant being detained one night in July 2002, and that he was "beaten" at that time. In addition, the panel noted the claimant omitted stating within statements to immigration officials that he had been arrested in December 1999 and detained for three days, that he was arrested in April 2000 and detained for several days, or that he had been arrested on March 23, 2001 and detained for four days. The claimant was asked to explain the discrepancies. The claimant first testified the interpreter made a mistake, the PIF narrative was the correct version. Later in the hearing the claimant testified perhaps the dates were mixed up by himself as he was afraid at that time, worrying about his family, and he was not good at remembering dates. The panel does not accept either that the interpreter would omit police detentions and/or serious physical assaults if the claimant alleged these incidents occurred. Further the panel determined the claimant's evidence should at least be consistent with other evidence he submitted, and the discrepancies seriously undermined his credibility.
[9] The Panel also found the Applicant's political connections to be questionable:
In making this determination, the panel considered the documentary evidence concerning the prevalent trafficking in fraudulent documents of this type in Pakistan for refugee purposes. For example, a German study of Pakistani asylum seekers found that nearly all documents presented in conjunction with their study, were forged or falsified or issued as a favour on request and against payment.
The documentary evidence indicates in many cases the result of checking an asylum seeker's pretended membership of political parties shows that he has not joined the parties in question.
With regard to lawyer's letters and FIR's in particular, the Federal Office stated:
Nearly all warrants of arrest, court decisions and letters from lawyers turned out to be forged or incorrect as to their contents.
Almost all the First Information Reports presented as evidence of an applicant's fate met in the process of persecution proves to be false. It is relatively easy in Pakistan to initiate a (fictitious) criminal case against oneself where the documents presented are authentic, but the proceedings have been discontinued for a long time.
Having considered all the documentary evidence and the claimant's testimony, the panel determined that there is insufficient credible and trustworthy evidence to establish the claimant is a member of the PML(N), or that he has a well-founded fear of persecution in Pakistan for any reason enumerated in the Convention refugee definition. For the same reasons, the panel also finds that there are not substantial grounds to believe that the claimant faces a danger of torture in Pakistan. The panel further finds, for the same reasons, that there is not a serious possibility of a risk to the claimant's life or that he will be subjected to cruel and unusual treatment in Pakistan.
ISSUES
[10] The issue on this judicial review is as follows:
Was the Decision based upon erroneous findings of fact that were made in a perverse or capricious manner or without regard to the evidence, specifically as regards the finding that the Applicant was not credible?
ANALYSIS
What is the applicable standard of review to apply to the Decision of the Panel?
[11] In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.), the Federal Court of Appeal discussed the standard of review for Refugee Division decisions:
4. 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. ...
[12] The Court should not seek to reweigh evidence before the Panel simply because it would have reached a different conclusion. As long as there is evidence to support the Panel's findings on credibility and no overriding error has occurred, the decision should not be disturbed.
Was the Decision based upon erroneous findings of fact that were made in a perverse or capricious manner or without regard to the evidence, specifically as regards the finding that the Applicant was not credible?
[13] In his written materials and at the hearing of this matter, the Applicant refers to various grounds of complaint concerning the Decision. In summary the points raised are as follows:
1. the Panel pre-judged the Applicant's case to such an extent that there is a reasonable apprehension of bias;
2. the Panel compounded the bias problem by not allowing the Applicant an extension of time to introduce original documentation;
3. the Panel based its credibility findings upon a microscopic examination of inconsistencies and omissions in the Applicant's evidence that are just not there, and it did this in blatant disregard of the explanations and other positive evidence raised by the Applicant, all of which the Panel dismissed as unreasonable;
4. the Panel failed to give reasons for its Decision in clear and unmistakable terms.
[14] I have reviewed these complaints in some detail against the Tribunal Record and the Decision and have come to the conclusion that they cannot be substantiated and that no reviewable error occurred in this case.
[15] At the heart of this Decision lies an adverse credibility finding by the Panel based upon inconsistencies and material omissions contained in the PIF, FIR, statements made to immigration and evidence given at the hearing. The Applicant argues that these inconsistencies and omissions either don't exist or are patently unreasonable. I have to disagree. The Panel states clearly why it cannot believe the Applicant's narrative. The cumulative impact of the inconsistencies and omissions, together with no explanation from the Applicant that the Panel finds reasonable, provides an adequate factual basis for the adverse credibility finding. These are findings of fact made by the Panel that this court should not interfere with. See Aguebor, supra.
[16] The cumulative effect of the inconsistencies and omissions was such that "the panel determined the claimant's credibility has been so seriously undermined as to cause the panel to make a general finding of lack of credibility." This was done in accordance with Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.), which the Panel actually referred to, and in accordance with the more recent jurisprudence of the Federal Court of Appeal on this issue in the decision of Rahaman v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 537.
[17] As a consequence, the Panel found that the Applicant's allegations were unreliable and unsustainable "given his efforts to arrange falsified travel documents, his lack of diligence in presenting identity documents and corroborative evidence in a timely manner, and his general lack of credibility."
[18] Given this conclusion concerning a general lack of credibility, the Panel ruled that "the production of the [original documents] was not going to affect the panel's analysis of his claim." The reason for this is that the general lack of credibility finding was based upon factual discrepancies and omissions that would not be removed by the introduction of original documents.
[19] Consequently, in my view, there was ample evidence to support the Panel's credibility finding, no issues were pre-judged, there was no reasonable apprehension of bias, and the exclusion of original documentation did not invalidate the real basis of the Decision.
[20] I can find no immediate and obvious defects in this Decision that would render it irrational. As the Supreme Court of Canada pointed out in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 55 , a "decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonable lead the tribunal from the evidence before it to the conclusion at which it arrived," and the "question is ..... whether the reasons, taken as a whole, are tenable as support for the decision" (at para. 56).
[21] In the case at bar, the Decision is not, in my opinion, unreasonable, let alone patently unreasonable or capricious.
ORDER
THIS COURT ORDERS that
1. This Application for judicial review is dismissed.
2. There are no questions for certification.
"James Russell"
JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1132-03
STYLE OF CAUSE: MUHAMMAD ARIF MIRZA v. M.C.I.
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: January 29, 2004
APPEARANCES:
Mr. Satnam S. Aujla FOR APPLICANT
Mr. W. Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
YANKO MERCHANT LAW GROUP
Calgary, Alberta FOR APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT