Date: 20040901
Docket: IMM-7428-03
Citation: 2004 FC 1201
Toronto, Ontario, September 1st, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
YASIN MOHAMMAD
RAZIA YASIN
UMAR MOHAMMAD (a.k.a. UMAD MOHAMMAD)
AHMAD HASSAN
FATIMA YASIN
ALI HASSAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Yasin Mohammad and his family, all citizens of Pakistan, seek judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), reasons dated August 5, 2003. In that decision, the Board determined that the applicants were not Convention refugees or persons in need of protection. The issues are whether the Board committed any reviewable error in arriving at a negative credibility finding or erred in its assessment of the availability of state protection.
Background
[2] Mr. Mohammad is a 36-year old, Shia Muslim from Lahore, Pakistan. He owned a convenience store. Razia Yasin is his wife and the other four applicants are his three sons and daughter, all minors. Mr. Mohammad's family's refugee claim is based on their familial relationship to him. Mr. Mohammad claimed to have a well-founded fear of persecution due to his religion at the hands of the militant Sunni Muslim religious group, Sipah-e-Sahaba ("SSP").
[3] Mr. Mohammad claims that on October 14, 2001 he was appointed as assistant financial secretary of his local Imam Bargah, as the acting financial secretary had become physically disabled. In that role, he was responsible for going door-to-door requesting donations and organizing various religious events. He claims that he began receiving threatening phone calls from the SSP a few weeks after his appointment to this position.
[4] Mr. Mohammad claims that he was attacked and his store robbed due to his involvement with these religious activities. He claims that he was attacked on his way home from work in December 2001, that his store was ransacked and robbed in February 2002, that in March 2002 his house was vandalized and he and his wife were attacked and that in May 2002 his shop was again attacked and he was beaten. During the May 2002 attack the SSP threatened that they would kidnap his children and told him not to contact the police. The applicants left Pakistan on May 23, 2002 and arrived in Canada on May 24, 2002, making refugee claims upon their arrival.
The Board's Decision
[5] The Board did not believe that Mr. Mohammad had been appointed acting financial secretary at his Imam Bargah, as it did not accept his explanation as to why a letter from his Imam Bargah ,offered in evidence in support of his claim, did not mention this important fact. Instead, the Board found that he was only a low level worker at the Imam Bargah and therefore he did not have a profile that indicated he would be targeted by the SSP.
[6] The Board also determined that the state of Pakistan was making serious efforts to provide protection to Shia citizens from religious violence perpetrated by the SSP and although this was not perfect, it amounted to adequate state protection. The applicants therefore did not rebut the presumption that state protection was available to them in Pakistan. The Board referred to several pieces of documentary evidence that set out Pakistan's efforts to curb sectarian violence. The Board described the nature of this documentary evidence as follows at pages 3-4 of its reasons:
The Department of State and British Home office are objective, have monitored the situation in Pakistan for many years, and rely on a number of independent sources. The press accounts and the information requests references are balanced and recent.
[7] The Board concluded that although serious problems still exist in eliminating sectarian violence, the Musharraf government had implemented several measures to protect citizens and the positive changes were durable.
Analysis:
Did the Board commit any reviewable error in its negative credibility finding?
[8] The applicants argue that it was unreasonable for the Board to draw the negative inference against Mr. Mohammad on the ground that the letter written by the religious leader of the Imam Bargah in Pakistan did not mention his work as the assistant to the financial secretary. Mr. Mohammad was not awarded an official title for this position since he was only a helper, assuming volunteer duties to help the financial secretary due to his illness. The applicants submit that Mr. Mohammad testified as to the duties he performed as assistant to the financial secretary and that he displayed credible knowledge of this role. Relying on Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.), the applicants submit that the Board's negative decision was not rationally open to it and that this Court should intervene.
[9] I am not satisfied that the Board committed a reviewable error in its assessment of the principal applicant's credibility. It was not a capricious finding or a patently unreasonable one for the Board to draw a negative inference from the lack of mention of Mr. Mohammad's position or duties at the Imam Bargah, in helping the financial secretary, in its corroborating letter. As noted by the Board, the applicants' problems allegedly began after Mr. Mohammad assumed these new responsibilities and the writer of the letter allegedly knew of the attacks and that the letter was to be used in support of his family's refugee claim. As held in Adu v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 114 (C.A.)(QL) the Board may make inferences from the lack of information in certain documentary evidence when one would reasonably expect certain information to be mentioned. The presumption of truth in an applicant's sworn testimony is always rebuttable and in appropriate circumstances it is open to the Board to view it as rebutted by the failure of documentary evidence to mention what one would normally expect it to mention.Moreover, refugee claimants have the burden of adducing all the material in support of their claim, and in this case, the applicants failed to establish that their claims were well-founded: Rahmatizadeh v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 578 (T.D.)(QL) and Perez v. Canada (Minister of Citizenship and Immigration) (1995), 92 F.T.R. 131.
[10] The dicta concerning the reviewability of plausibility and credibility findings in Giron, supra, relied upon by the applicant, were clarified in the Court of Appeal's subsequent decision of Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). The burden remains on the applicant to show that the inference could not reasonably have been drawn by the Board and it has not been satisfied in this case.
[11] I note that the Board's negative credibility finding was based solely on this one negative inference and that might, in other circumstances, have been cause for some concern. However, as I will set out below, the Board's finding on state protection is detailed and extensive. As held in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the determination of state protection is an integral component of the refugee definition and a claimant must provide clear and convincing proof of their state's inability to protect them in order to have a well-founded fear of persecution.
Did the Board err in its assessment of the availability of state protection in Pakistan?
[12] The applicants submit that the Board's analysis of state protection was based on a highly selective view of the documentary evidence and that the Board ignored evidence that was contradictory to its conclusion. This evidence indicates that the government in Pakistan is insincere with regards to its promises to protect the Shia minority. The applicants say that the government is unable to protect Shias and that it is not making serious efforts to curb sectarian violence. The applicants say that in ignoring the documentary evidence that supports this outcome the Board erred: Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.) and Tariq v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 822 (T.D.)(QL).
[13] I agree with the respondent's submissions that it is clear from the Board's reasons that it was aware of the ongoing difficulties for Shia Muslims in Pakistan and that evidence both favouring and militating against the applicants' claim was considered and noted by the Board. The Board referred to the same U.S. Department of State Report relied upon by the applicants, and also to the serious problems that remain in controlling sectarian violence in Pakistan. The Board undertook an extensive analysis of this issue, setting out several steps that the Musharraf government in Pakistan has taken to provide protection to its citizens. The Board noted that the protection offered in Pakistan is not perfect. Its reasoning in this regard was in line with the accepted jurisprudence, notably Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.).
[14] The applicants disagree with how the Board weighed the evidence and the conclusion it reached with respect to the Musharraf government's efforts to protect minorities. While I can understand how they might well have a different view of the situation in Pakistan, that does not mean that the Board failed to have regard to the totality of evidence or failed to properly assess the relevance and weight of the evidence. Accordingly, there is no basis for this Court's intervention: Ye v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1233 (C.A.)(QL).
[15] The reasons demonstrate, in my view, that the Board was aware of the problems and dangers that still exist in Pakistan. Its conclusion that the applicants in this case would receive state protection was not an unreasonable one.
[16] No serious question of general importance was proposed and none is certified.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7428-03
STYLE OF CAUSE: YASIN MOHAMMAD
RAZIA YASIN
UMAR MOHAMMAD (a.k.a. UMAD MOHAMMAD)
AHMAD HASSAN
FATIMA YASIN
ALI HASSAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 31, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
APPEARANCES BY:
Lani Gozlan For the Applicant
Andrea Hammell For the Respondent
SOLICITORS OF RECORD:
Max Berger & Associates
Toronto, ON For the Applicant
Morris Rosenberg
Toronto, ON
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040901
Docket: IMM-7428-03
BETWEEN:
YASIN MOHAMMAD
RAZIA YASIN
UMAR MOHAMMAD (a.k.a. UMAD MOHAMMAD)
AHMAD HASSAN
FATIMA YASIN
ALI HASSAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER