Date: 20000710
Docket: IMM-2105-99
BETWEEN:
BATOOL HAYDER
ZENIB HAYDER
ALI HAYDER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] This is an application for judicial review of a decision made by the Immigration and Refugee Board (the "Board") on November 23, 1998. In its decision, the Board declared the principal claimant, Batool Hayder and her two minor children, Zenib Hayder and Ali Hayder, not to be convention refugees. Leave to commence the application for judicial review was granted on January 4, 2000.
[2] Batool Hayder is a citizen of Pakistan. She claims to have a well-founded fear of persecution by reason of religion and membership in a particular social group, that is woman abused by their husbands.
[3] The claimant, a member of the Shia religion, married her husband, a member of the Sunni religion, on January 1, 1990. The marriage was arranged by their families. A daughter, Zenib, was born on November 27, 1990. A son, Ali, was born on February 1, 1992.
[4] The principal claimant says that her marriage was tolerable, but not affectionate, from its beginning. Matters began to deteriorate following the birth of her daughter. Toleration turned to abuse, including physical abuse of the mother and infant daughter. The claimant says she was raped by her husband and subsequently became pregnant with her second child. She says her husband progressively spent more time away from home following the birth of their son and became involved with a militant extremist anti-Shia group, the Sipah-e-Sahaba (the "SSP"). She attributed his growing hostility towards her to his increasing involvement with the SSP group. She claims to fear for her safety and that of her children.
[5] The claimant and her children arrived in Canada on May 6, 1997 and presented an in-land refugee claim on June 10, 1997.
[6] The Board rejected the claim for convention refugee status and found, on a balance of probabilities, that the claimant does not have a well-founded fear of persecution. The Board made a general finding of lack of credibility.
[7] The Board noted that although the claimant and her husband belonged to different religions, the husband allowed the claimant and children to practise the Shia religion. The Board was not satisfied that in these circumstances that the husband would suddenly become a fundamentalist and a supporter of an extremist group, that is the SSP. The Board also noted that the claimant does not have the profile or involvement of a person who would be targeted by the SSP. Finally, the Board discussed the availability of state protection and noted that the claimant did not seek state protection. The Board found that although imperfect, the state had responded to sectarian violence.
The Applicant"s Arguments
[8] The claimant submits that the Board erred in its assessment of her evidence concerning the transformation of her husband into a supporter of the SSP. This error by the Board resulted in a negative finding as to the Applicant"s credibility.
[9] The Applicant also submits that the Board erred in its interpretation of the documentary evidence concerning the targeting of Shias by the militant Sunni group, SSP. This error also led to an erroneous finding of lack of credibility. The Applicant says that the documentary evidence shows that a Shia need not be an anti-Sunni activist or a member of a Shia organization to be targeted by the SSP.
[10] Finally, it is alleged that the Board erred in misapprehending the sworn evidence of the Applicant concerning her husband"s intention to persecute both the Applicant and her daughter. The Applicant says this error also led to an erroneous conclusion that the Applicant"s evidence lacked credibility.
The Respondent"s Arguments
[11] The Respondent submits that questions of credibility and weight of the evidence are within the jurisdiction of the Board as the trier of fact. The Board may make a negative finding of credibility provided that reasons are given in clear and unambiguous terms concerning such negative findings. The Respondent says that was done in this case.
[12] The arguments presented by the Applicant raise one question to be determined in this judicial review, namely did the Board err in assessing the applicant"s credibility?
[13] It is well recognized that in relation to questions of credibility, the findings of the Board are due a high degree of deference. In Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), Justice Decary indicated that findings of credibility are clearly within the purview of the Board:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. |
[14] I have reviewed the Board"s decision and the Tribunal Record, including the transcript of the hearing before the Board and I cannot conclude that the Board erred in assessing the Applicant"s credibility.
[15] Moreover, I would also note that the Board refers to the availability of state protection for the Applicant in its reasons.1 The Board notes that neither the Applicant nor her family sought state protection. The Board found that although the state protection available is less than perfect, it was established that the government of Pakistan did respond to occurrences of sectarian violence.
[16] In Ward v. Canada (Minister of Employment and Immigration) (1993), 103 D.L.R. (4th) 1, the Supreme Court of Canada considered the relevance of the availability of state protection to a claim for convention refugee status. In its decision, the Court recognized that notwithstanding a well-founded fear of persecution on one of the named grounds, a claim for convention refugee status will not succeed if state protection is available.
[17] In the circumstances of this case and in light of the above, there is no basis for the Court to intervene in the decision made by the Board. The application for judicial review is dismissed.
[18] Counsel for the parties have seven days following their receipt of these reasons
to submit a question for certification.
| J.F.C.C. |
OTTAWA, Ontario
July 10, 2000
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