Federal Court Decisions

Date: 20050518

Docket: IMM-9132-04

Citation: 2005 FC 717

Montréal, Quebec, May 18, 2005

PRESENT:    THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER

BETWEEN:

SHEIKH ASHFAQ AHMAD, AZRA AHMAD

BAKHTAWAR AHMAD, BINIAMEEN AHMAD,

SAIRA AHMAD, MOMNA AHMAD

Applicants

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]    This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"), for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), wherein the Board determined that the principal applicant was not a Convention refugee or person in need of protection according to sections 96 and 97 of the Act, respectively.

[2]    The principal applicant, Sheikh Ashfaq Ahmad, is a citizen of Pakistan who bases his claim for refugee status on his religious beliefs. He also claims refugee protection for risk to his life and of cruel and unusual treatment, or punishment, or a danger of torture. His spouse and four minor children join in his claim for refugee status.

[3]    The applicant was born in the district of Sambrial, Punjab, Pakistan, where his parents continue to reside. He completed five years of education and was an owner of a general store. He married the co-claimant in 1993. The applicant is a Shia muslim from a well-respected merchant family.

[4]    He alleges the following facts for the basis of his claim:

[5]    The applicant's family was regularly attacked by a radical Sunni muslim group, the Sipah-e-Sahaba (SSP) in Pakistan at the beginning of 1999. Their home was attacked and the applicant's spouse was beaten. They moved but returned in 2002. The applicant worked to raise funds for a girls' school. He alleges to have been attacked by the SSP for this on September 12, 2002. He was hospitalized. However, he kept working for this cause. On November 29, 2002, the applicant was attacked again, which was reported to the police but nothing was done.

[6]    On December 11, 2002, the applicant, joined by his father and the president of the local Anjuman went to the district police office. A formal complaint was made. On December 15, 2002, the SSP attacked the applicant's home once more. The applicant fled but his sister was shot, requiring part of her leg to be amputated as a result.

[7]    The applicant moved to Gujranwala. Arrangements were made for him to go to the United States along with his family on December 29, 2002. The applicant and co-applicants arrived in Canada on January 21, 2003.

[8]    The Board denied the applications for refugee status, reasoning that the applicants' lack of credibility - particularly regarding the allegations made concerning what occurred when they were living in Pakistan in 2002 - was the central reason for its decision.

[9]    The applicable standard of review for the decision under review is patent unreasonableness (N'Sungani v. Canada (Minister of Citizenship and Immigration),    [2004] F.C.J. No. 2142 (F.C.)(QL)). The Board's decision is grounded in its credibility determination and related findings of fact, which the Board is in a privileged position to assess (Muthuthevar v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 207 (F.C.T.D.)(QL)). To be successful, the applicants must show that the Board committed errors of a perverse or capricious nature such "that no amount of curial deference can justify letting [the decision] stand": Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 52.

[10]                        I find that this threshold has been met in the present case.

[11]                        First, the Board stated that the applicant and his wife made contradicting or inconsistent statements at the Port of Entry. They did not. The Port of Entry statements indicate that the two responses to the same question - whom are you afraid of if you returned to your country? - were entirely consistent: Both referring to the SSP, the applicant stated "the seepa saherba are sunni and the ones who will harm me", while his wife stated the "sheepa saheba". It was in response to another question - what are you afraid of if you returned to your country? - that his wife stated "the business was attacked". However, her response reads in full, "we fear for our lives, the business was attacked, burned and my husband beaten", which is again totally consistent with the applicant's response to that question where he stated that he was "afraid of physical harm".

[12]                        For the Board to make use of these statements in such a selective fashion, to in effect fabricate an inconsistency and, in turn, question the applicants' credibility is in my view patently unreasonable.

[13]                        Similarly, the Board stated that the applicants failed to provide evidence that the children were in fact born in Pakistan, i.e. a family registration or Form-B. However, the certified copy of the record before the Board contains just that. And, counsel for the applicants at the Board hearing, specifically drew the existence of this document to the Board's attention. The Board's finding in this respect was thus plainly wrong.

[14]                        It is true, as the respondent points out, that the documentary evidence attached to the applicant's affidavit purporting to attest to the authenticity of the Form-B cannot be considered in the context of this judicial review. That does not change the fact that the Board manifestly erred in stating that Form-B was not submitted in evidence. Review of the certified record reveals that it was.

[15]                        Further, I am of the view that the Board failed to properly consider the reasons why the applicants claimed a well-founded fear of persecution.

[16]                        The Board explicitly found that the lack of credible or trustworthy evidence surrounding the events alleged to have occurred in 2002, motivating the applicants to flee Pakistan, was critical to its decision. But to support this finding, the Board primarily focused upon on the lack of details concerning the applicants' arrival in the United States. If there was no other evidence in support of the applicants' claim, perhaps these shortcomings would be sufficient to call into question the veracity of the applicants' story and deny their refugee claims. But in the face of other evidence demonstrating that the applicants were persecuted by the SSP in Pakistan in the fall of 2002, evidentiary gaps about the applicants' travel to the United States cannot defeat their claims a priori.

[17]                        However, the evidence pertaining to the events that took place in Pakistan - the evidence at the heart of the applicants' claims for refugee status - was only addressed in a minimal fashion or completely ignored.

[18]                        For instance, the applicant offered reasonable explanations as to why the children's birth certificates were all dated in the year 2002 and why the police reports were dated a year after the incidents in question: The applicant had no need for the birth certificates before he had cause to flee the country, and he only learned of the warrant of arrest following his arrival in Canada.

[19]                        In my view, the Board simply did not approach the applicant's testimony with the appropriate mindset, to believe, in the absence of evidence to the contrary, the applicant's testimony as truthful. If the Board doubts the truthfulness of the applicant's testimony, it must state its reasons for doing so in "clear and unmistakable terms": Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.). Such terms are missing here in my opinion.

[20]                        Even more damagingly, the Board in no way addressed the medical reports submitted by the applicant evidencing the physical attacks he suffered. These reports are contemporaneous with the attacks alleged to have taken place on November 29, 2002 and December 15, 2002. Perhaps these reports would have been found unreliable, but it is incumbent upon the Board, given their centrality to the applicant's claim, to speak to these reports: see for e.g., Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.).

[21]                        For all these reasons, the application for judicial review is allowed. The matter is referred back for redetermination by a newly constituted panel.

ORDER

THIS COURT ORDERS that

[1]    The application for judicial review is allowed.

[2]    The matter is referred back for redetermination by a newly constituted panel.

       "Danièle Tremblay-Lamer"