Date: 20041014
Docket: IMM-3493-04
Citation: 2004 FC 1411
OTTAWA, ONTARIO, OCTOBER 14, 2004
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
AFSHAN AYUB AYUB
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the tribunal), dated February 23rd, 2004, wherein the tribunal dismissed the applicant's claim and determined that she is not a convention refugee, pursuant to section 96 of the IRPA, and is not a person in need of protection, pursuant to section 97 of the IRPA.
[2] The applicant is a citizen of Pakistan born on December 19, 1961, who alleges that she was persecuted in her country because of her political opinion, her membership in a political party, the Pakistan People's Party (PPP), and the fact that she was a woman in Pakistan. She also alleges to be a person in need of protection pursuant to section 97 of the IRPA.
[3] According to the applicant, she left Pakistan because her uncle, a member of the Pakistan Muslim League (PML) hatched a plot against her which resulted in her arrest and charges being laid against her. She claimed to have been accused of immoral behaviour because she was an active and strong supporter of the Pakistan People's Party (PPP). Based on her account, the charges were laid and communicated to her by means of a "First Information Report"(FIR) on May 31, 1997, under sections 109, 506 and 507 of the Pakistani Code of Criminal Procedure.
[4] Because of these charges, the applicant left Pakistan on September 6, 1997 for Canada. She arrived in Canada with a visa to study at York University, but just over a month later, she left for the United States where she lived from October 18, 1997 until July 28, 2002. At that time she returned to Canada to claim refugee protection and stated that, on account of her imputed political opinion and because she was a woman in Pakistan, she feared returning to her country as the charges against her might lead to a death sentence. She also fears her uncles who are members of the PML and whom she says would receive support from the military government and the army in having her condemned to death.
[5] On February 23, 2004, the tribunal dismissed the applicant's claim because of her lack of subjective fear and lack of credibility. The tribunal who also considered the claim in light of paragraph 97(1) of the Act found that there is no trustworthy evidence that the applicant would be personally exposed to a danger of torture or a risk to her life. For the following reasons, I find the grounds of review raised by the applicant to be unsubstantiated and I see no reason to intervene or disturb the tribunal's decision.
[6] The issue before me is whether the tribunal made a patently unreasonable finding of fact, or committed an error of law in making its determination.
[7] This Court has established, on numerous occasions, namely in R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162 (F.C.T.D.) (QL) at para. 7, that the determination of an applicant's credibility is at the core of the tribunal's jurisdiction. Furthermore, this Court has found that the tribunal has well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant: see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 (F.C.T.D.) (QL) at para. 38; and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), (1998), 157 F.T.R. 35 (F.C.T.D.) (QL) at para. 14. It is also up to the tribunal to use its discretion to evaluate if the applicant's account is plausible and to make an adverse finding of credibility on that basis (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.) (QL).
[8] It has been well established that, with respect to credibility and assessment of evidence, this Court may not substitute its decision for that of the tribunal's when the applicant has failed to prove that the tribunal's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or that the decision was made without regard for the material before it (See Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 (F.C.T.D.) (QL) at para. 14; and the grounds for review at subsection 18.1(4)(d) of the Federal Courts Act, R.C.S., 1985, c. F-7. Furthermore, the tribunal is entitled to consider the testimonial and documentary evidence as a whole in order to determine how much weight it should be accorded (Mostajelin v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 28 (F.C.A.) (QL). Therefore, if the tribunal finds that the applicant's allegation lacked credibility, it can also consider that the evidence submitted by the applicant should be given little weight.
[9] Indeed, it is well established that a general lack of credibility of the applicant can affect all relevant evidence submitted by the applicant and ultimately cause the rejection of her claim. On this matter, in Sheikh v. Canada, [1990] 3 F.C. 238 (C.A.) (QL) the Federal Court of Appeal held that:
I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony.
[10] On another issue, during a judicial review, courts must limit the scope of their review in such a way that only evidence that was submitted by the parties to the administrative decision maker will be taken into account. (Naredo and Arduengo v. Canada (Minister of Citizenship and Immigration) (1997), 132 F.T.R. 281 (F.C.T.D.) (QL); Owusu v. Minister of Citizenship and Immigration, [1995] F.C.J. No. 1505 Doc. A-1483-92 (F.C.T.D.) (QL)) To review a decision on the basis of new evidence would be to transform the review into an appeal. Consequently, all new evidence submitted by the applicant in her affidavit will not be considered by this Court.
[11] On the matter of the tribunal's conclusion that the applicant lacked subjective fear, this Court finds that the conclusion was not based on an erroneous finding of fact that the tribunal made in a perverse or capricious manner or without regard for the material before it.
[12] The applicant submits that the standard to be applied is whether there is a reasonable possibility that she may face persecution, torture and inhumane treatment; however in order to meet the definition of a "Convention Refugee", the applicant must show that she meets the various parts of that definition beginning with subjective and objective fear of persecution. In Kamana v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1695 (TD)(QL), at paragraph 10, Justice Tremblay-Lamer stated:
The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition - subjective and objective - must be met.
[13] In other words, if the applicant fails to establish subjective or objective fear, there is no need for the tribunal to proceed further with the analysis of the other requirements of the definition of refugee, that is whether or not there is a nexus with one of the enumerated grounds and there is an absence of internal flight alternative and state protection (Akacha v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1897 (F.C.T.D.) (QL); Rivera v. Canada (Minister of Citizenship and Immigration),[2003] F.C.J. No. 1634 (F.C.T.D.) (QL)).
[14] In the case at bar, the tribunal was well founded to take into account the fact that the applicant's refugee claim was made after an unusually long delay of nearly five years after she first came to Canada. In connection with this, the tribunal found that the applicant failed to provide satisfactory explanations for the delay. This Court has already established that such a delay and lack of satisfactory explanation can be fatal to an applicant's claim. Mr. Justice Rouleau held in Espinosa v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1680 (F.C.T.D.) (QL) that:
The Board states correctly that while the delay is generally not a determinative factor in a refugee claim, there are circumstances where the delay can be such that it assumes a decisive role; what is fatal to the applicant's claim is his inability to provide any satisfactory explanation for the delay.
[15] Furthermore, the tribunal also took into account the fact that the applicant did not make a refugee claim while she was in the United-States. However, she did stay in the United-States for almost five years. This is yet another element that the tribunal considered in its assessment of the applicant's credibility in her allegation of subjective fear. According to Mr. Justice Pinard in Canada (Minister of Citizenship and Immigration) v. Bueno, [2004] F.C.J. No. 629 (F.C.T.D.) (QL) held that:
In fact, the failure to claim refugee status when the claimant is in a country of protection, is an element which goes to the root of the claim and which should be considered in the assessment of the credibility of the claimant's subjective fear.
[16] Moreover, the tribunal, considering the facts and evidence on record, simply did not believe the applicant's story. The tribunal found that the applicant's conduct contradicted her claim of fear for her safety and her life. Hence, the tribunal concluded that the applicant's claim lacked a subjective fear of persecution.
[17] In the present case, the tribunal gave no credibility whatsoever to the applicant's story. The applicant's story was judged to be not credible because it contained numerous contradictions. These contradictions were not minor or peripherical inconsistencies. For example, the tribunal noted that section 507 of the Pakistani Code of Criminal Procedure did not correspond at all with the charges laid in the First Information Report. Also, the tribunal noted that the applicant's lawyer did not provide a reasonable explanation for this inconsistency. Furthermore, the tribunal considered other evidence in evaluating the applicant's credibility. The tribunal stated that, according to the Montreal Regional Binder dated October 2002, documents such as those presented by the applicant were almost always false. Accordingly, the documents submitted as evidence by the applicant were given no weight by the tribunal. The applicant has failed to establish that those findings are patently unreasonable.
[18] As for other specific arguments that the applicant made in her record, this Court finds that none of them is well founded.
[19] The applicant further argues that the tribunal made a reviewable error when it failed to consider the Gender Guidelines in its decision. This Court believes that the tribunal implicitly considered the Gender Guidelines in its decision, although it did not expressly state so in its reasons. Furthermore, this Court finds that the tribunal's failure to mention the Gender Guidelines has no bearing on the issue of this case since its key findings relate to the applicant lack of subjective fear and of credibility. Moreover, the tribunal is not bound by the Gender Guidelines: (Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (FCA) (QL); Hazarat v. Canada (Secretary of State), [1994] F.C.J. No. 1774 (F.C.T.D.) (QL)). Furthermore, this Court finds that the decision Griffith v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1142 (F.C.T.D.) (QL) is not applicable to the case at bar. In Griffith, supra, the Court's decision to quash the tribunal's decision was based on the fact that the analysis required to make a proper finding of credibility was not made and that the tribunal did not disclose the degree of knowledge, understanding, and sensitivity required in assessing the actions of a woman subjected to domestic violence. Such elements are not found in the case at bar. Therefore, this Court's believes that Griffith, supra, is not relevant to this case and that the tribunal did not make a reviewable error when it did not mention the Gender Guidelines in its decision.
[20] The applicant also argues that the tribunal made a reviewable error when it failed to consider the documentary evidence submitted by the applicant in connection with the human rights situation in Pakistan. These documents are in fact objective documentary evidence. Usually, objective documentary evidence is not, on its own, sufficient to grant an applicant's refugee claim: Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 (F.C.T.D.) (QL) at para. 38. Therefore, since the tribunal found that the applicant lacked subjective fear, it was not necessary for it to make a finding in regard to the objective evidence: Tsakala v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 569 (F.C.T.D.) (QL).
[21] In addition, the applicant states that she has been wrongfully treated by the tribunal to the point that a breach of natural justice has occurred. With all due respect and after an extensive reading of the transcripts from the hearing, this Court does not believe that a breach of natural justice occurred. In fact, the applicant had every opportunity to explain her side of the story and to respond to the tribunal's questions. Furthermore, the tribunal was very patient with the applicant during the hearing. In fact, even though the applicant had a problem that prevented her from speaking normally, and even though the applicant had some trouble expressing herself and understanding the questions posed to her, the tribunal took the time to repeat each question to the applicant when she did not understand or when she simply did not respond in an appropriate manner. As for the question relating to the health of the applicant's mother, the tribunal only asked the applicant to be more precise in her answers because it was having difficulty understanding her testimony and, ultimately, because it wanted to be able to better evaluate her credibility. Basically, there is no evidence supporting the allegation of a breach of natural justice. Anyhow, even if a breach of natural justice occurred, the applicant raised no objection at the hearing. This failure to object at the hearing amounts to an implied waiver of any breach that might have occurred: Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (F.C.A.) (QL).
[22] On another matter, this Court dismisses the applicant's allegation that her removal from Canada violates the Canadian Charter of Rights and Freedoms. This Court is of the opinion that, following the decision of Kofitse v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1168 (F.C.T.D.) (QL), the applicant's Charter arguments are without merit. These arguments are premature since the decision before us is not the final stage in the applicant's deportation, but is limited to the conclusion that the applicant is not a convention refugee or a person in need of protection.
[23] For all these reasons, I conclude that the tribunal's determination in the case at bar is reasonable and does not contain an error of law. Therefore, its decision must be upheld. No question of general importance was proposed and none shall be certified by the Court.
ORDER
THIS COURT ORDERS that this application for judicial review be denied.
"Luc Martineau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3493-04
STYLE OF CAUSE: AFSHAN AYUB AYUB v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL (QUÉBEC)
DATE OF HEARING: SEPTEMBER 29, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: October 14, 2004
APPEARANCES:
Mr. Stewart Istvanffy FOR THE APPLICANT
Ms. Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Stewart Istvanffy FOR THE APPLICANT
Montréal, Quebec
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
Montréal, Quebec