Date: 20020815
Docket: IMM-5537-01
Neutral citation: 2002 FCT 873
Montréal, Quebec, August 15, 2002
Present: The Honourable Mr. Justice Blais
BETWEEN:
JAMEEL AHMAD
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board (hereinafter the "Board") dated November 5, 2001, determining that the applicant does not meet the definition of "Convention refugee".
FACTS
[2] The applicant was born on October 19, 1970. He is a native of the village of Machi Khokhar, in the region of Sialkot, in the province of Punjab.
[3] He belongs to a Shiite family well-known for their work in the community.
[4] The applicant's father was a long-standing member of the Imambargah for at least thirteen years.
[5] As an active member of the Shiite community, the applicant came into conflict with the extremist group known as Sipah Sahaba Pakistan (SSP).
[6] The applicant referred to several incidents in which he alleged that he had been a victim of persecution by members of the SSP.
[7] The applicant claimed that he was attacked by Moulvi Imam Din in September 2000.
[8] On February 26, 2001, the applicant and his friend, Syed Jarar Hussain, were victims of an assassination attempt by Mian Mansoor and four other men. Mr. Hussain was shot twice in the back and died the following day.
[9] The applicant stated that in the interim, he had received threatening phone calls from members of the SSP, including Moulvi Imam Din and Mian Mansoor.
[10] As a result, the applicant left Pakistan on May 7, 2001, and arrived in Canada on May 9, 2001.
[11] He immediately claimed refugee status, alleging that he had a well-founded fear of persecution by the Pakistani authorities and by members of Sipah Sahaba Pakistan for reasons of political opinion.
ISSUE
[12] Did the Board make a decision based on erroneous findings of fact that it made in a
perverse or capricious manner and without regard for the material before it?
ANALYSIS
Applicable standard of review
[13] In Ranganathan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 269
F.C.T.D..), Mr. Justice Evans stated:
[para 45] On the other hand, the Refugee Division's determination of whether the relevant facts satisfy the Rasaratnam test, properly understood, is a question of mixed fact and law, and is reviewable only for unreasonableness.
[14] In this case, the conclusions drawn by the Board with respect to the applicant's credibility were based on facts. Therefore, the applicable standard of review is patent unreasonableness.
Applicant's credibility
[15] In Aguebor v. Canada (MEI), [1993] F.C.J. No. 732 (C.A.), the Federal Court of Appeal established the circumstances that would justify judicial intervention relating to a tribunal's findings on the issue of an applicant's credibility:
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.
[16] The Board made several comments with respect to the applicant's lack of credibility. We should recall that this Court must not determine whether other findings of fact could have been made from the evidence but must only decide whether those that were in fact made were made in a perverse or capricious manner or without regard for the material before it.
[17] At page 3 of the decision, the Board stated:
With respect to testimonial credibility, the claimant's testimony was found to be neither credible nor trustworthy. In the course of his testimony a number of contradictions, inconsistencies and implausibilities surfaced for which the claimant did not provide any satisfactory explanations. The claimant's testimony at times appeared to be vague, evasive and reticent. He did not appear to be endeavouring to tell the truth . . . .
[18] Later, at page 4, the Board said:
Again, the claimant's testimony appears to us to be wholly implausible and ludicrous.
Documentary Evidence
[19] The Board is master in the assessment of the evidence before it. It can gauge the probative value of each of the documents it receives and of the testimony it hears.
[20] In Paranawithana v. Canada (Minister of Citizenship and Immmigration), [1996] F.C.J. No. 1513 (F.C.T.D.), Deputy Justice Heald stated:
[para 2] The C.R.D.D. made numerous adverse findings of credibility with respect to the applicant's testimony. Questions of credibility and the weight to be accorded to evidence are within the jurisdiction of the Division as the trier of fact and do not afford a legal basis for interfering with the decision of the Division.
[21] And inPehtereva v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1491 (F.C.T.D.), Mr. Justice MacKay said:
[para 12] . . . the weight to be assigned to given documents or other evidence is a matter for the tribunal concerned.
[22] At paragraphs 1.6 and 1.6.2 of his record, the applicant alleged that:
[TRANSLATION] The Board erred . . . by deciding not to assign any probative value to the applicant's documents (page 5 of the decision);
The applicant had filed several documents in support of his claim. The documents filed by the applicant corroborated his testimony. They confirmed that he belonged to a religious minority in Pakistan. They confirmed his religious activities and his persecution by the SSP, which is a fundamentalist group in Pakistan.
The applicant's documents were not disproved. The Board had to give the applicant's documents all the probative value required.
[23] At page 5, the Board made the following determination with respect to the documentary evidence:
Given the claimant's lack of general credibility no probative value was given to his documentary evidence dealing with his alleged victimization in Pakistan.
[24] In my view, it is, to say the least, surprising and even astounding that the Board completely rejected the documentary evidence submitted by the applicant.
[25] It is true that the Board considered that the applicant was not credible, but the Board's findings on credibility were essentially based on the incident of February 26, 2001.
Incident of February 26, 2001
[26] At page 3 of the decision, the Board described in the following manner how the incident of February 26, 2001, unfolded:
The claimant alleges that, on the 26th of February 2001, while he and a friend Syed Jarar Hussain were on their way to the Imambargah, Mr. Mian Mansoor of the SSP with four of his goons tried to stop them at the corner of the street. When he saw that they were holding pistols and rifles, he attempted to evade them by speeding up on his motorcycle.
[27] It becomes clear further on that the Board questioned the credibility of the applicant's account:
Questioned as to why he fled rather than halt, he stated that he was afraid that they were going to kill him and that he felt he had no other choice. The claimant's explanation was deemed unsatisfactory. The scenario, as described by the claimant, appears to the Division to be inherently suspect and improbable.
[28] At page 3, the Board explained its reasoning in great detail:
The plausibility that he, in the company of his friend, would in this situation attempt to make a break appears to us far and remote, more so given the number of armed men involved.... The plausibility of this scenario was further undermined when the claimant unable to spontaneously explain why he was not hit by gunfire. His initial response was that his friend had received two bullets, but that he, by the grace of God, was able to escape injury and death.
[29] At page 5, the Board ultimately concluded:
The claimant's explanation given his own allegation of victimization by the SSP, and its notoriety in Pakistan, appears to us as being totally outlandish and ludicrous. Certainly not the musing of reasonable man victimized by the SSP.... No credibility was given to the claimant's testimony on this issue.
[30] We must recall that it is a matter for the Board alone to assess the evidence and to give it the probative value that it considers appropriate and to draw the necessary conclusions therefrom.
[31] Further on in its analysis, the Board found the applicant not credible when he explained that he had made the arrangements for his deceased friend's funeral, and that he had waited until his house was set on fire before going into hiding.
[32] On the one hand, the Board criticized the applicant for having fled too quickly on February 26, whereas the death of his friend by gunfire would seem to justify that he was right in fleeing.
[33] On the other hand, the Board criticized him for not having fled soon enough two days later.
[34] It seems clear to me that the findings that were made by the Board were not consistent with the evidence that was before it with respect to plausibility and are patently unreasonable.
[35] Moreover, the Board's decision not to analyze the documentary evidence that was adduced by the applicant fully justifies the intervention of the Court.
[36] Therefore, the Court allows the application for judicial review.
[37] The decision of the Immigration and Refugee Board dated November 5, 2001, is set aside, and the matter is referred back to it for re-hearing before a newly constituted panel.
[38] No serious question was submitted for certification.
"Pierre Blais"
Judge
Certified true translation
S. Debbané, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: IMM-5537-01
STYLE OF CAUSE:
JAMEEL AHMAD
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 13, 2002
AND ORDER: THE HONOURABLE MR. JUSTICE BLAIS
DATE OF REASONS: August 15, 2002
APPEARANCES:
Vonnie Rochester FOR THE APPLICANT
Sylviane Roy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Vonnie Rochester FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020815
Docket: IMM-5537-01
Between:
JAMEEL AHMAD
Applicant
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER