Date: 20040916
Docket: IMM-5636-03
Ottawa, Ontario, this 16th day of September, 2004
Present: The Honourable Justice James Russell
BETWEEN:
MUHAMMAD ILYAS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board"), dated May 30, 2003 ("Decision"), that determined that Muhammad Ilyas ("Applicant") was not a Convention refugee or a person in need of protection.
BACKGROUND
[2] The Applicant claimed a fear of returning to Pakistan by reason of mistreatment he would face as a Shia, and because of his activities as a "simple worker" for the Tehrik Nitaz Figah Jaffaria ("TNFJ"), a Shia organization. He recounted harassing calls to his family when he was a child and then described 2 incidents that allegedly happened to him, one in March, 2001 and the other in October, 2001.
[3] On March 21, 2001, the Applicant says that at 11:30 at night, he and his brother were beaten by five SSP soldiers. The Applicant says that he was targeted because he was an active member of the TNFJ. After this beating, he continued to engage in activities with the TNFJ, such as distributing pamphlets to rally the attendance of Shia in the community to religious ceremonies. The Applicant says that as a result of these activities he was targeted by the Sepah Sehaba ("SSP"), a militant organization, and on October 22, 2001, he was attacked by four masked and armed men driving motorcycles. These men said that they must teach this "infidel Shia Hazara boy" a lesson for being against the SSP. The Applicant says that he was hit in the head with the butt of a pistol, beaten and kicked and then saved by an approaching car that saved the Applicant's attackers, who left stating that, next time, he would be killed.
[4] He claimed that the incident in October, 2001 made him realize that "it was no more possible to live in Pakistan." He also stated that "subsequently," he obtained a U.S. visa and flew to the United States. However, the Applicant had already been granted a U.S. visa on September 11, 2001. Three months later, he said he left Pakistan to "save [his] life."
[5] The Applicant arrived in the United States on December 5, 2001. He did not make a claim in the United States. Six days later he came to Canada and made his claim on December 14, 2001.
DECISION UNDER REVIEW
[6] The Board found the Applicant's story implausible. It did not make sense that the Applicant would be targeted because of some activities of his father's that occurred when the Applicant was 11 or 12, and for which the father was not targeted. Further, the documentary evidence revealed that ordinary persons such as the Applicant are not targeted in the way he suggested.
[7] Moreover, the Applicant's credibility was not enhanced by his delay in making a claim in Canada, or by his failure to claim in the United States. His credibility was also undermined by his claim that he did not investigate the situation in the United States for refugee claimants before he left Pakistan, despite having friends there and the fact that his father had been in communication with them as recently as two days before the Applicant left. The Board expected people who fear for their safety to flee at the earliest opportunity and to seek protection as soon as they are beyond the reach of their persecutors. Hence the Board felt there was no subjective or objective basis to the claim and the Applicant had not demonstrated any risk concerning his return to Pakistan.
ISSUES
[8] The Applicant raises the following issues:
Did the Board err by making a decision of implausibility and negative credibility?
Did the Board make a capricious finding of fact unsupported by evidence that the Applicant does not have a prospective danger of persecution in Pakistan?
ARGUMENTS
Applicant
Did the Refugee Division err by making a decision of implausibility and negative credibility?
[9] The Applicant submits that the Board erred in concluding that his testimony was not credible or plausible. It based its Decision on an unreasonable implausibility finding. He says this constitutes an error in law (Aguebor v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 732 (T.D.).
[10] The Board based its negative findings on implausibilities of the kind that MacGuigan J.A. warned against in Giron:
The Convention Refugee Determination Division of the Immigration and Refugee Board chose to base its finding of lack of credibility here for the most part, not on internal contradictions, inconsistencies and evasion, which is the heartland of triers of fact, but rather on the implausibility of the claimant's account in light of extrinsic criteria such as rationality, common sense and judicial knowledge, all of which involve the drawing of inferences, which triers of fact are in little, if any, better position than others to draw.
Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.)
Failure to Make Claim in U.S.
[11] The Board also drew a negative inference from the Applicant's failure to make a refugee claim in the U.S. However, as he explained at the hearing, he arrived in the U.S. shortly following the September 11, 2001 incident and feared he would not be considered for asylum because people from his part of the world were viewed as terrorists. The Applicant said he realized this fact only upon his arrival in the U.S. and after speaking to friends in that country. Further, his stay in the U.S. was very short and he spent little more than one week there before coming to Canada.
[12] In El-Naem v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 185 (T.D.) at pages 6 and 7, the Applicant points out that this Court determined that the CRDD erred when it drew a negative inference from an applicant's failure to make a refugee claim in Greece, where he had sojourned for one year prior to his arrival in Canada. The Court made the following remarks about unreasonable inferences:
He testified that he had no money and that he stayed in Greece to accumulate sufficient money to come to Canada. He testified that he had heard that refugee protection in Greece was problematic and that he feared deportation to Syria if he exposed his illegal status and tested refugee protection here...
...
The explanation provided by the Applicant, considering all of his circumstances, was not an unreasonable one. It is too heavy a burden to place on a young person, impecunious and on his own, in a strange land with strange customs and language, and without family support, to assume he would inevitably act in a manner that reasonable persons, secure in Canada, might regard as the only rational manner.
...
I conclude that the Tribunal erred in a reviewable manner in determining that the Applicant's refugee claim could not succeed by reason of inferences drawn from his sojourn in Greece.
[13] Similarly, in the instant case, the Applicant is a young man who has only finished his high school and has never been outside of his country. He was unfamiliar with the refugee process and arrived in the U.S. following the September 11 attack, which led him to feel a negative atmosphere towards persons from his part of the world. Fearing that he would not be considered for asylum, he came to Canada after a mere nine days. For the reasons given in El-Naem, the Board erred in drawing an unreasonable inference.
Profile in Community
[14] The Board also found it implausible that Sipah-e-Sahaba attacked the Applicant and his brother rather than their father, who had been their target six years earlier. However, the Applicant explained in his hearing that by the time his own persecution began, his father was no longer religiously active and visible in the Shia community. At the same time, the Applicant became very active and visible, particularly in his Imam Bargah, throughout the years immediately leading to his persecution. As a result, he became a target of the Sipah-e-Sahaba while his father was no longer of any interest to them as he was not seen as a religious or ideological 'threat'.
[15] The Applicant says he also explained in his hearing that he was targeted more than executive members of the TNFJ due to the fact that he was very visible, active and young. He says he was a threat to the Sipah-e-Sahaba who eliminate youths of his profile before they grow older and more active in their religion. The Applicant testified that most of the activities he performed on behalf of his Imam Bargah took place outdoors. He was, therefore, highly visible in the eyes of the Sipah-e-Sahaba who may have also suspected that he had an important role in his religious community. All of this makes the Board's implausibility finding with respect to the persecution suffered by the Applicant, as opposed to the executive members of the TNFJ, unreasonable and based on mere assumptions for which there was no evidence.
Failure to Kill the Applicant
[16] The Board found it implausible that Sipah-e-Sahaba did not kill the Applicant when they had the opportunity to do so during an attack when he was hit with the butt of a pistol. However, as the Applicant testified, he was threatened during the attack. His assailants wanted to "teach him a lesson." The Applicant saw this as a final warning. It was reasonable for him to leave at this time to prevent the threat from being carried out. The Board's negative inference was unreasonable.
[17] The Board based its negative inferences on mere assumptions and the Board's own view of common sense. This is contrary to Giron.
Did the Refugee Division make a capricious finding of fact unsupported by evidence that the Applicant does not have a prospective danger of persecution in Pakistan?
Change in Country Conditions and Adequate State Protection
[18] The Board concluded that the Applicant does not have a prospective danger of persecution in Pakistan. This conclusion was based on a determination that a change in circumstance has occurred and the situation of Shias has improved in Pakistan. The Board's analysis reflects a highly selective use of the documentary evidence. The Board simply ignored evidence contrary to its conclusion.
[19] The Board is not required to refer to all of the documentary evidence. However, it may not base its findings on a highly selective use of the evidence, ignoring significant evidence contrary to its findings.
[20] The Applicant also says that the Board ignored evidence on country conditions that illustrates the Pakistan government's insincerity over its promises to protect its Shia minority.
[21] The Applicant says it is clear that there is no durable and lasting change of circumstance to indicate that Shia minorities are protected in Pakistan.
[22] The Applicant concludes that the government of Pakistan is not making efforts to curb violence and is unable to protect its minority Shias. This is more than evident from the number of Shia deaths in Pakistan and the current level of violence by extremist groups.
[23] The Applicant says that the Board, in not considering the documentary evidence led by counsel at the hearing, has ignored relevant evidence on the record, in its determination that the Applicant does not have good grounds for fearing persecution. This failure is a reviewable error, as Mahoney J.A. stated in Owusu-Ansah at p.113):
The failure to take account of material evidence has been variously characterised by this Court in allowing Section 28 applications. In Toro v. Canada, my brother Herald for the Court, said: It appears therefore that the Board in making its' decision has not had regard to the totality of the evidence properly before it. It has therefore erred in law.
Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106; Toro v. Canada (Minister of Employment and Immigration), [1981] 1 F.C. 652 (C.A.)
[24] The Board erred in making a premature determination that state protection is available to the Applicant. The Board failed to address itself to the totality of the evidence. This constitutes an error of law.
Respondent
Failure to Claim Earlier
[25] The Respondent says that a review of the reasons demonstrates the unfoundedness of the Applicant's argument that the Board did not consider his explanations for failing to claim at the earliest opportunity, and in the United States at all. The Board considered his claim of ignorance of the situation in the United States but found it implausible. The Board decided that a person truly fearful for his/her safety would have investigated the situation in the United States prior to going there. In this case, the Applicant had friends in the United States and his father was in communication with them as early as 2 days before he left Pakistan.
[26] The Board's conclusions are all the more reasonable because of the fact that the Applicant had his visa for the United States for three months before he left Pakistan. Moreover, since it is the well publicized events of September 11, 2001 that purportedly made it inhospitable for the Applicant to make a claim in the United States, it is particularly implausible that he would have made no inquiries whatsoever, of his own friends even, of how refugee claimants like himself might fare in that country before going there.
Profile
[27] While the Applicant claimed, and now re-asserts, that his own activities made him visible in Pakistan, the documentary evidence did not support such a claim. Nor was it plausible that a low-level person such as the Applicant would be attacked, when other more active persons and the actual members of the executive of his religious organization were not. The Board just could not accept his assertion that he was "more visible."
[28] If, as the Applicant claims, attackers had wanted to kill him, they would have done so in the incident when a group of them allegedly attacked him with a pistol. The Board's rejection of the Applicant's assertion that attackers wanted to kill him is not unreasonable.
[29] In assessing credibility, the Board is entitled to rely on criteria such as rationality and common sense (Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C. J. 415 (C.A.)).
[30] The Board is in the best position to gauge the credibility and plausibility of the Applicant and to draw the necessary inferences. As long as those inferences are not so unreasonable as to warrant the Court's intervention, the Board's findings are not open to judicial review (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.); Araya v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. 821(T.D.)).
Documentary Evidence
[31] The balance of the Applicant's argument relates to the weight that the Board gave to documentary evidence. A re-weighing of the evidence is not a proper task for the Court on judicial review (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 (paras. 34 to 38)).
[32] As stated by Thurlow, C.J. in Brar v. Canada (Minister of Employment and Immigration), [1986] F.C.J. 346 (C.A.):
In our opinion, the points argued by counsel for the Applicant raise only questions of credibility and of the weight of evidence and afford no legal basis upon which this Court could properly interfere with the decision of the Immigration Appeal Board.
State Protection
[33] The Applicant's argument on state protection does not appear to relate to the case at bar. The Board did not make a state protection finding because, having rejected his story in its entirety, it did not believe that the Applicant had any need of protection.
ANALYSIS
[34] The Applicant raises a variety of grounds for reviewable error. Credibility was the key issue in the Decision.
Failure to Make a Claim in the U.S.
[35] The Board drew a negative inference from the Applicant's failure to make a refugee claim in the U.S.
[36] The Applicant explained at the hearing that he arrived after the September 11, 2001 attacks and felt his chance at asylum would be slim because of where he had come from. His stay in the U.S. was a mere 9 days before he made a refugee claim in Canada.
[37] The reason given by the Board for finding this explanation implausible was that the Applicant and his father did not make enquiries and familiarize themselves with the law before the claimant left Pakistan. The Applicant's father had been in touch with U.S. friends two days before the Applicant left Pakistan and had had "ample time to investigate the laws of the land and to enquire of the friends in New York as to situation for immigrants/refugees following September 11, 2001."
[38] The Respondent points out that it seemed implausible that the U.S. friends were close enough for the father to entrust his 18-year-old son to them, but that the father did not first ascertain from them what was happening to refugees from Pakistan. Finding this implausible, says the Respondent, was not patently unreasonable, bearing in mind that the Applicant had a U.S. visa on September 11, 2001 and, by waiting until December, obviously did not leave Pakistan at the earliest opportunity.
[39] In my view, the fact that the Applicant and his father did not make full inquiries and ascertain the situation in the U.S. before the Applicant left Pakistan is an insubstantial justification for a negative plausibility finding. The Board is imposing its own view of what it thought would have been a sensible approach to the situation and using this as a reason to doubt the Applicant's explanation that he didn't really appreciate the nature of the problem until he arrived in the U.S. If this finding was the whole basis for the Decision, it would be unsafe, but the Board goes on to make other findings and this issue cannot be viewed in isolation.
[40] Similarly, a delay of 9 days before making a refugee claim in Canada, given the Applicant's explanation was hardly significant enough to call into question the Applicant's evidence that he feared for his life in Pakistan. A delay, particularly of this small duration should not be determinative. See Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.).
Implausible Targets
[41] The Board also found it implausible that the Applicant and his brother were attacked by SSP soldiers rather than their father who had been the target six years earlier.
[42] The rationale offered by the Applicant was that, by the time he became a target for the SSP, his father was no longer active in the religious community and the Applicant had become very active and visible, particularly in his Imam Bargah, and had also become a member of the TNFJ.
[43] The crucial reason why the Board questioned his explanation on this matter is as follows:
However, the claimant, in oral testimony, said he had become a member of the TNFJ on June 25, 2001, and, in written testimony, that he joined on July 10, 2001, both dates subsequent to the March 21, 2001 attack.
[44] In addition to this discrepancy, the Applicant had also testified that threatening calls had been made against his father and other family members in general, rather than against him specifically. The Applicant had been a young boy of 11 when the threatening phone calls began. The Board concluded as follows:
The panel finds that, on a balance of probabilities, it is implausible that the father would go unscathed for all those years, and that the SSP would wait until 2001 and choose to attack the claimant. The panel finds this evidence untrustworthy and lacking in credibility.
[45] The Applicant explained how the intensification of his activities and rising profile resulted in him becoming a target. At the hearing of this matter before the Court, Applicant's counsel pointed out that the precipitating event for his leaving (the attack by SSP thugs that was interrupted by a passing motorist) took place in October, 2001, by which time the Applicant had become a TNFJ member.
[46] The Respondent's counsel countered this by saying that the second attack occurred in October 2001 after the Applicant obtained his visa. So the Applicant was obviously planning to leave before the attack occurred.
[47] Respondent's counsel may be correct in this regard, but this is not what the Board relied upon in its Decision. The reference is clearly to the March 21, 2001 attack. No consideration is given to the October, 2001 attack which occurred after the Applicant became a TNFJ member. This is a material omission in the Board's reasons that renders its negative credibility finding in this issue unsafe.
Failure of the SSP to kill the Applicant
[48] The Board found it implausible that the SSP did not kill the Applicant when they had the opportunity to do so during the October, 2001 attack when he was hit with the butt of a pistol.
[49] The Applicant explained in testimony that this attack was intended as a warning and that the SSP merely wanted to teach him a lesson on this occasion, but the threat was clear that he would be killed in the future. This is why he left Pakistan.
[50] The Board's reasoning on this issue was as follows:
I find this implausible. If these four attackers wanted to kill the claimant, they had the opportunity to do so in this incident. The claimant was hospitalized for two hours. Following this incident, the claimant, after discussions with his father, decided to leave the country. I find the claimant's accounting of these events lacking in plausibility and do not believe the events occurred.
[51] This rationale does somewhat miss the point of the Applicant's claim that a warning was intended by the SSP. However, the actual words used during the attack, as related by the Applicant, are as consistent with a warning as an intention to kill on that occasion. Teaching a lesson can be done by death or a beating and a warning. What the Board doesn't address, however, was the Applicant's clear testimony that the attack was interrupted and that this was why he wasn't killed. Also, the Board's findings on this issue, rather than being based upon any internal inconsistency in the Applicant's testimony, are nothing more than the Board's own musings about what it thought ought to have happened. These are thin and unsafe grounds for a negative finding on this point. However, once again, this finding has to be examined in context of the Decision as a whole and the other reasons stated by the Board for its negative credibility finding.
Other Reasons
[52] The Applicant argues that the Board's finding that he does not have a prospective danger of persecution in Pakistan is based upon a determination that a change in circumstances has occurred and the situation of Shias has improved. As usual, the criticism is that this conclusion is based upon "a highly selective use of the documentary evidence" and "the tribunal has ignored evidence contrary to its conclusion that was before the panel at the hearing."
[53] The problem with his ground of attack is that the Board makes no such finding and does not refer to a change in circumstances or adequate state protection.
[54] The Board finds, rather, based upon documentary evidence, that the Applicant does not have the profile for someone at risk in Pakistan, so that there is no objective basis for his claim.
Profile
[55] The other significant reason why the Board refused the claim was that it did not believe the Applicant had the profile of someone at risk. The Board found it implausible that the Applicant had been targeted rather than other active members of the TNFJ or the executive of the Iman Bargah. The Applicant's response was that he was young, but he was zealous and highly visible. He was the one collecting donations for the Iman Bargah, and he was recognizable by the badge and the receipt book that he carried.
[56] The Board found it "implausible that, if the claimant were in fear of the SSP for collecting donations for the Iman Bargah, he would flaunt this activity rather than using discretion."
[57] As the Applicant points out, not all of the attacks on Shia that appear in the reports are on doctors and lawyers and high-ranking religious officials. He was young, zealous and visible in the community. There is nothing inconsistent about his collection activities, which he stopped immediately after the October, 2001 attack. He was an ideological threat to the SSP and a successor to his father who worked outdoors for his religious community.
[58] I am highly cognizant of the Respondent's warning that the Court should not merely re-weigh evidence and come to a different conclusion from the Board. This is particularly so in the case of a Decision based upon credibility.
[59] What troubles me here is that so much of the Decision rests upon negative plausibility findings and negative inferences: failure to make a claim in the U.S.; implausible target for the SSP; failure of the SSP to kill the Applicant when they had the chance. None of these findings have much of a base to them. They are not based upon inconsistencies internal to the Applicant's evidence but upon the Board's own view of what someone in the position of the Applicant and his family should have done, or upon what the Board thought would have been a more likely outcome in the circumstances. When it comes to making decisions based upon these kind of criteria, the Board is no better placed than the Court. Also, inferences and conclusions are drawn by the Board without really addressing strong evidence that points the other way (e.g. the fact that the October, 2001 attack was interrupted). The one place where the Decision appears to identify a strong inconsistency - the discrepancy between the March 21, 2001 attack and the Applicant's joining the TNFJ at an earlier date - doesn't really amount to much when the precipitating event was the October, 2001 attack which happened after the Applicant joined the TNFJ.
[60] One such weak finding might be acceptable, but this Decision is based upon a series of implausibility findings that fail to deal with plausible contrary evidence and/or miss the real point of the Applicant's narrative i.e. that the October 2001 attack was what stopped all his activities and caused him to conclude he had to leave Pakistan to save his life.
[61] In total, they add up to a Decision that is patently unreasonable and should be reconsidered.
ORDER
THIS COURT ORDERS that
1. The Application for judicial review is allowed and this matter is submitted to a differently constituted Refugee Division of the Board for reconsideration.
2. There is no question for certification.
"James Russell"
JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5636-03
STYLE OF CAUSE: MUHAMMAD ILYAS
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: July 21,2004
REASONS FOR ORDER : The Honourable Mr. Justice Russell
& ORDER
APPEARANCES:
LONI GOZLAN
FOR APPLICANT
MARIANNE ZORIC
FOR RESPONDENT
SOLICITORS OF RECORD:
MAX BERGER & ASSOCIATES
BARRISTERS & SOLICITORS
TORONTO, ONTARIO
FOR APPLICANT
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
DEPARTMENT OF JUSTICE
TORONTO, ONTARIO
FOR RESPONDENT