Federal Court Decisions

Date: 19971205

Docket: IMM-4362-96

BETWEEN:

     MOHD SAEED ALAM,

     Applicant

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

ROULEAU, J.

[1]      This is an application pursuant to section 82.1 of the Immigration Act, R.S.C.

1985, c. I-2 (the "Act") for judicial review of a decision rendered by the Convention Refugee Determination Division of the Immigration and Refugee Board of Canada, dated October 30, 1996, in which it was decided that the Applicant was not a Convention Refugee pursuant s. 2(1) of the Act.

[2]      The Applicant was born on March 18, 1940, in Lahore, Pakistan. His father was the secretary and a leader of the Muslim League.

[3]      On September 12, 1990, he retired from his job and began working for the party full time; in particular, he fixed banners, arranged meetings and spoke to people about the corruption of the Pakistan People Party (PPP). Shortly thereafter the Applicant's party won the elections but the government was dissolved before the completion of its term. Nevertheless, the Supreme Court restored the government but it was then coerced by the army to relinquish control.

[4]      The PPP won the elections in 1993; they then began harassing ML workers. In March 1994, the Applicant was arrested at his home, beaten, and urged to leave the ML and join the PPP. According to the Applicant, the police said that they had orders to charge him in a fabricated case if he did not comply with their demands. The Police allowed him to think it over but warned that they could find him anywhere in Pakistan.

[5]      According to the Applicant, on April 1995, while he was participating at a meeting to organize a march, the PPP attacked the meeting that injured a dozen individuals and killed two; following this incident, two warrants for the Applicant's arrest were issued. In June 1995, the Applicant experienced two further incidents with the PPP. First, the PPP went to the Applicant's home, beat his children in an attempt to uncover his whereabouts. Again in June 1995, the Applicant was on his way home from ML house, he learned that the PPP were again looking for him; he fled to a friend's home. The next day, he learned from his family that they had been beaten by the PPP and threatened that if they found the Applicant they would kill him having received orders to do so. They also broke up some of his furniture and stole his briefcase containing some personal papers.

[6]      On June 8, 1995, the Applicant left Pakistan and in July, 1995, he was informed by his wife by telephone that the police were still looking for him. On July 21, 1995, the Applicant arrived in Canada and made a refugee claim on August 21, 1995.

[7]      The Immigration and Refugee Board (the "Board") heard the Applicant's case on September 24, 1996, and rendered its decision on October 30, 1996. The Applicant based his claim on a well-founded fear of persecution in Pakistan on the grounds of political opinion and membership in a particular social group.

[8]      The Board determined that the Applicant was not a Convention Refugee pursuant subsection 2(1) of the Act. The Board found that the Applicant was not generally credible and had testified in a reluctant and evasive manner. It was of the opinion that the Applicant did not answer questions directly, many had to be repeated, and very little information was volunteered by him. Furthermore, it seemed that the Applicant's answers were not reflective of one who had a story to tell and was willing to talk about his experiences.

[9]      The Board provided examples to illustrate the difficulties experienced with the Applicant's testimony. For example, the Board had problems establishing his position within the ML party from 1990-1994. Following enquiries about his sudden arrest in March 1994, the members were not convinced with his explanations. Additionally, the Board noted that in the Applicant's oral testimony, there were major new elements of the claim which were not even alluded to in the PIF. In particular, he omitted from his PIF both his arrests in April 1995, the theft of his briefcase with personal documents by the PPP in June 1995 as well as the loss of his wallet in 1974.

[10]      The Board also took issue with the Applicant's failure to include in his narrative his lawyer's letter dated June 13, 1995 concerning outstanding warrants against him; also that the Applicant failed to include information provided by his wife by telephone that both the police and the PPP went to his home looking for him after he had left Pakistan. The Board found that these important details should have been part of the PIF completed September 13, 1996. Accordingly, the Board concluded that the Applicant appeared to have developed new details after writing the PIF narrative for the purpose of strengthening a story.

[11]      The issue before the Court is the following:

Did the Board base its decision on an erroneous finding of fact that made it in a perverse or capricious manner or without regard to the material before it in concluding that:

a) the Applicant was suddenly arrested in March 1994?

b) the Applicant was not credible because there were important omissions in his PIF concerning events that occurred in June 1985?

[12]      The Applicant submits that the evidence does not support the Board's finding that the Applicant's testimony was not generally credible. In particular, the Board wrongly concluded that the Applicant was suddenly arrested in March 1994. The Board's conclusion that the Applicant's account on this point was not credible, was erroneous.

[13]      The Applicant also submits that the Board was wrong in concluding that the Applicant was not credible because there were important omissions in his PIF concerning events that occurred in June 1995 and the failure to reveal the outstanding arrests related to him in correspondence by his lawyer. The Applicant contends that he explained to the Board that he had been ill advised and did not include these events in his written declaration because he could testify to them verbally at his hearing.

[14]      The Respondent contends that the Board's finding of an overall lack of credibility on the part of the Applicant was well-founded, supported by evidence and based on serious and relevant considerations. Accordingly, the Applicant's allegations are gratuitous, unfounded and inconsistent.

[15]      The Respondent also submits that it is in the Board's domain not only to draw conclusions from the contradictions of the Applicant's testimony, but also to assess the plausibility of his story. Moreover, in assessing the credibility of the evidence before it, the Board must rely on impressions derived from the frankness and spontaneity of witnesses, their hesitation and reservation as well as from their attitude and behaviour.

[16]      The Respondent further submits that in view of all the implausabilities in the Applicant's testimony, as well as the vague and evasive manner in which the Applicant testified throughout the hearing, it was reasonably open to the Board to find the Applicant not to be a Convention refugee due to his overall lack of credibility.

[17]      Finally, the Respondent submits that the Board has not committed a manifest or determinative error, nor that its conclusions were in any way unreasonable in determining an overall lack of credibility on the part of the Applicant.

[18]      It has been clearly established that a refugee tribunal must have regard to the totality of evidence before it when assessing the credibility of a refugee claimant.¹ The tribunal can reject a claim on the ground that the claimant is not credible but it must state that ground clearly² and it must give reasons for the credibility finding³.

[19]      No doubt the Board is in the best position to evaluate the credibility of the claimant and that the intervention of this Court should be limited to cases in which there has been a manifest or determinative error committed.

[20]      The analysis of his arrest in March 1994: Several reasons were offered by the Applicant however, the Board was simply not satisfied with the Applicant's explanations. I disagree with this finding of fact and accept that the account of events was reasonable. The Board also doubted the Applicant's credibility when in oral testimony, he described new major elements to support his claim which were not revealed to in his PIF. In particular, the Applicant's arrest in April 1995, the theft if his briefcase also in 1995 and loss of wallet in 1974; the fact that he failed to mention that the police and the PPP were searching for him at his home after he had left Pakistan as well as the outstanding warrants against him. Finally the Board after persistent questioning and concern about the hierarchy of the M.L. doubted his replies.

[21]      The Board was wrong to put such emphasis and persistent questioning on the make up and internal structure of the M.L. in Pakistan. My perception is that this questioning could lead to some confusion and was of little or no consequence. If he was hesitant to answer it should be remembered that they were dealing with an individual who required an interpreter to answer and had a hearing deficiency. They were also concerned about not revealing in his PIF the theft of his briefcase in 1995 and his wallet in 1974; totally irrelevant.

[22]      But the most important element on which the Board relied referring to what was missing from his PIF; the fact that he did not mention the outstanding warrants for his arrest when he completed his narrative in September of 1995. A careful examination of the letter from his lawyer indicates that it was not sent until May of 1996, not 1995 as the Board suggests. The letter also makes reference to the incident of April 1995 which was questioned by the Board. The warrants refer to Terrorist Activities which are outstanding since June of 1995. One of the documents is dated May of 1996 and supports his contention that if he was returned he would again be subject to arrest.

[23]      I am not satisfied that the evidence on which the Board relied could support its findings.

[24]      The application for judicial review is allowed.

     JUDGE

OTTAWA, Ontario

December 5, 1997

__________________

     ¹Owsu-Ansah v. M.E.I., (1989) 8 Imm. L.R. (2d) 106 (Fed.C.A); Toro v. M.E.I. (1981) 1 F.C. 652 (C.A.)

     ² Ababio v. M.E.I. (1988), 5 Imm L.R. (2d) 174 (Fed. C.A.).

     ³Armson v. M.E.I. (1989), 9 Imm. L.R. (2d) 150 (Fed. C.A.); Hilo v. M.E.I., (1991) F.C.J. No. 228 (F.C.A.).