Date: 20040604
Docket: IMM-9188-03
Citation: 2004 FC 808
Between:
HASIB AHMAD
Applicant
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated November 3, 2003, that the applicant is not a Convention refugee or a person in need of protection.
[2] The applicant, a 28-year-old citizen of Pakistan, alleges that he qualifies as a person in need of protection because he fears persecution by the police and the Pakistan Muslim League (PML) by reason of his political beliefs and his affiliations with the Pakistan People's Party (PPP).
[3] In his Personal Information Form (PIF) and his testimony before the Board, the applicant alleged that his problems with the Pakistani authorities began in 1991 and persisted until his departure from Pakistan on October 28, 2000, to go to the United States where he claimed refugee status. He was incarcerated at first and later released when it was determined that his claim had a minimum of merit. While awaiting his hearing on the merits, the applicant lived and worked in the United States, but, fearing that the commencement of the "Registration of Aliens" program, created in the United States following the events of September 11, 2001, would jeopardize his chances of success in his asylum process, the applicant left the United States to come to Canada on March 23, 2003, and applied for refugee status while his case was pending in the United States.
[4] The Board's reasons indicate that it relied on numerous inconsistencies in the applicant's story in order to find that he lacked credibility and that his claim for asylum was completely without merit.
[5] More specifically, the Board noted that the applicant's testimony was interspersed with lengthy moments of hesitation, while he limited himself to repeating his PIF word for word and was unable to provide any particulars beyond the content of the PIF.
[6] To corroborate his claims of affiliation with the PPP, the applicant filed in evidence at the hearing four letters from PPP officials based in Pakistan and New York. However, it was disclosed at the hearing that the applicant did not personally know most of them or had ever met them. Moreover, after examining closely one of the letters filed in evidence by the applicant (a letter from the PPP president in New York), the Board noted that it had been manually falsified.
[7] Concerning the probative value to be given to the three other letters, the Board noted that they were not contemporaneous with the events that supposedly occurred, that they had been constituted at the personal request of the applicant's father, not the applicant, and that consequently they were not first-hand evidence since they had been written pursuant to hearsay by the applicant's father.
[8] In his PIF, the applicant alleged that an arrest warrant was issued against him on October 18, 1999. However, the applicant was unable to tell the hearing at what date the warrant had been issued against him. Moreover, the Board noted that the applicant had failed to file this arrest warrant in evidence at the hearing, although he had filed a First Information Report (FIR). The Board was puzzled that the applicant was unable to explain the difference between a FIR and a warrant of arrest in Pakistan.
[9] The applicant justified his failure to file his arrest warrant in evidence by the fact that he had still not received it. When confronted with the inconsistency resulting from the latter statement, the applicant adjusted his testimony and stated that he was no longer really certain that a warrant had indeed been filed against him and that perhaps there was none. Yet the Board noted that earlier in the hearing the applicant had been adamant in his reply when asked whether a warrant had been issued against him, answering "obviously there is one because the police comes to my house once a month to arrest me."
[10] Furthermore, the Board found that the allegations of harassment and persecution at the hands of the Pakistani police since 1999 were contradicted by the documentary evidence, which reports that it is high profile members who are targeted. So the Board thought it improbable that the police would issue a FIR against the applicant in 1999 when, by his own account, he had ceased his political activities in 1994.
[11] Finally, the Board reports in its reasons that the applicant's conduct - the fact that he had renewed his Pakistani passport at New York, on September 26, 2001 - was incompatible with that of a refugee. Citing articles 41 and 49 of the UN's Handbook on Procedures and Criteria, the Board held that this conduct denied the existence of a subjective fear in Pakistan.
[12] All of these reasons led the Board to reject the applicant's claim.
[13] The applicant's main argument is the claim that the Board erred in dwelling solely on an analysis of the applicant's circumstances from the standpoint of section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), and then using this analysis to reject the applicant's claim under section 97 of the Act. The applicant submits that this approach is erroneous because it contradicts the intention of Parliament by making these two sections into one and stripping section 97 of its content and rationale.
[14] In support of this submission, the applicant refers to the decision of this Court in Bouaouni v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1540, in which Mr. Justice Blanchard stated:
¶ 41 A claim under section 97 must be evaluated with respect to all the relevant considerations and with a view to the country's human rights record. While the Board must assess the applicant's claim objectively, the analysis must still be individualized. I am satisfied that this interpretation is not only consistent with the United Nations CAT decisions considered above, but is also supported by the wording of paragraph 97(1)(a) of the Act, which refers to persons, "...whose removal ... would subject them personally...". There may well be instances where a refugee claimant, whose identity is not disputed, is found to be not credible with respect to his subjective fear of persecution, but the country conditions are such that the claimant's particular circumstances, make him/her a person in need of protection. It follows that a negative credibility determination, which may be determinative of a refugee claim under s. 96 of the Act, is not necessarily determinative of a claim under subsection 97(1) of the Act. The elements required to establish a claim under section 97 differ from those required under section 96 of the Act where a well-founded fear of persecution to a convention ground must be established.
[15] Thus, the applicant argues, the Board erred in using its findings on lack of credibility to dismiss the applicant's fear of persecution. The Board, he submits, should not have confined itself to saying the applicant was not credible without considering the documentary evidence establishing systematic violations of human rights committed in Pakistan.
[16] The applicant further alleges that the Board's decision was unfair and arbitrary since it failed to consider a number of items of evidence, as well as a significant portion of his testimony. Furthermore, he says, the Board adopted contradictory and irreconcilable positions concerning his credibility.
[17] The applicant also argues that the Board erred in requiring a more demanding burden of proof than the one required by the Act, and that this necessitates the intervention of this Court.
[18] Finally, he alleges that the Board erred in applying Canadian standards in its assessment of his conduct without taking cultural differences into account.
[19] The respondent notes that the reasons for rejecting the claim largely pertain to inconsistencies in the applicant's testimony at the hearing, and argues that the deficiencies in question, indicated by the Board, cannot attract the intervention of this Court.
[20] The respondent further submits that the applicant, in attempting to cite an inconsistency in the Board's decision, presents at several places in his memorandum conclusions drawn by the Board that are in fact simply allegations by the applicant that were repeated by the Board.
[21] First of all, I wish to point out that the relevant test under section 96 is in fact quite distinct from the test under section 97. A claim based on section 97 requires the Board to apply a different criterion pertaining to the issue of whether the applicant's removal may or may not expose him personally to the risks and dangers referred to in paragraphs 97(1)(a) and (b) of the Act. However, this criterion must be assessed in light of the personal characteristics of the applicant. Indeed, as Blanchard J. noted in Bouaouni, supra:
¶ 41 [T]he wording of paragraph 97(1)(a) of the Act... refers to persons, "...whose removal ... would subject them personally...". There may well be instances where a refugee claimant, whose identity is not disputed, is found to be not credible with respect to his subjective fear of persecution, but the country conditions are such that the claimant's particular circumstances, make him/her a person in need of protection. [Emphasis added]
[22] Thus the assessment of the applicant's fear must be made in concreto, and not from an abstract and general perspective. The fact that the documentary evidence illustrates unequivocally the systematic and generalized violation of human rights in Pakistan is simply not sufficient to establish the specific and individualized fear of persecution of the applicant in particular. Absent the least proof that might link the general documentary evidence to the applicant's specific circumstances, I conclude that the Board did not err in the way it analyzed the applicant's claim under section 97.
[23] Having analyzed the case as a whole, and in light of the very strongly argued decision of the Board, I am unable likewise to adopt the other submissions of the applicant. This is a case of judicial review of a decision almost entirely based on the assessment of the applicant's credibility in terms of his testimony before the Board. It has been consistently held by our courts that the Board has well established expertise when it comes to determining questions of fact and in particular assessing the credibility of asylum seekers. In fact, the assessment of the facts constitutes the cornerstone of the Board's jurisdiction. As the trier of facts, the Board is the body that is in the best position to draw reasonable findings as to the credibility of the claimant's story, basing itself on improbability, common sense and reason. Consequently, if the Court is to set aside a finding of fact by the Board it must be demonstrated that this finding is patently unreasonable, and that has not been done in this case.
[24] In fact, the applicant appears to detect in the Board's reasons an inconsistency that does not exist. And since the applicant was not considered credible, the Board was entitled not to assign probative value to the personal exhibits the applicant filed in support of his refugee claim.
[25] Finally, it should be noted that even if the applicant's claim for asylum had been considered sufficiently credible by the U.S. authorities to result in his release, that claim was not decided on the merits by the U.S. authorities and the applicant cannot rely on this release alone to demonstrate the merit of his refugee claim. Furthermore, even if the applicant had been awarded refugee status in the United States, that does not imply that he could automatically obtain asylum in Canada, since the Canadian and U.S. systems for recognizing refugee status are distinct and independent.
[26] The onus of demonstrating that the Board erred in its assessment of the evidence rested on the applicant, and in the absence of any such demonstration I do not see how the intervention of this Court could be warranted in this case.
[27] For these reasons, the application for judicial review is dismissed.
"P. Rouleau"
Judge
OTTAWA, Ontario
Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9188-03
STYLE: Hasib Ahmad v. The Minister of Citizenship
and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 19, 2004
REASONS: The Honourable Mr. Justice Rouleau
DATED: June 4, 2004
APPEARANCES:
Jean-François Fiset FOR THE APPLICANT
Mario Blanchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean-François Fiset FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Montréal, Quebec