Date: 20041029
Docket: IMM-769-04
Citation: 2004 FC 1499
Ottawa, Ontario, this 29th day of October, 2004
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
SHAHID MAHMOOD
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[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 January 7, 2004, wherein the Board found the Applicant to not be a Convention refugee or a "person in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act (the "Act").
ISSUE
[2] Did the Board err in finding that the Applicant is not a Convention refugee or a "person in need of protection" as defined in sections 96 and 97 respectively of the Act?
FACTS
[3] The Applicant is a citizen of Pakistan. He alleges being a member of the Shia Muslim minority in Pakistan. He alleges a well-founded fear of risk of torture, cruel and unusual punishment and a risk to his life at the hands of the "Sipah-e-Sahaba" (SSP) fundamentalists because of his involvement in Shia social activities.
[4] The Applicant alleges that in May 1992 the SSP attacked him. The Applicant alleges that on July 4, 1992, some SSPs went to the claimant's place of business looking for him; not finding him, they beat the employees. The incident was reported to the police who took no steps to apprehend the culprits. In August 1992, the claimant left Pakistan and went to the USA where, in 1994, he alleges applying for asylum. Some time later he withdrew his claim and voluntarily returned to Pakistan because his mother was very sick.
[5] In 1998, the claimant returned to the USA illegally, was intercepted by US Immigration authorities and deported to Pakistan. In January 1999, the claimant returned to the USA where he worked as a taxi driver using his real name until May 2002 when he came to Canada and claimed refugee status.
DECISION UNDER REVIEW
[6] The Board found the Applicant to not be a credible witness, and denied his claim for refugee status. The Board gives the following reasons in support of its decision:
[7] The claimant stated that he is a Shia Muslim but did not introduce any document or proof of his religion. When asked why the claimant did not provide any documentation other than a letter by the Montreal Jafferia Islamic Foundation (exhibit P-11) to prove his faith, he answered that his counsel had not told him to provide such documents. The panel finds the claimant's explanation unsatisfactory given his level of education (14 years) and believes that the claimant is not Shia Muslim.
[8] The claimant testified that he claimed asylum in the USA in 1994, but had no proof of this. Exhibit M-1, a fax sent by the US Border Patrol, does not show that the claimant claimed asylum in the USA. When asked if he could explain this lack of proof regarding his claim the Applicant said it was a mistake.
[9] Exhibit M-1 states that the claimant came to Canada in 1997 and stayed for three days. When asked if this was the case, the claimant answered no and added that it was a mistake. The Board has no reason to doubt the information provided by the US Border Patrol and believes that the claimant did not tell the truth in order to mislead the tribunal.
[10] The POE notes indicate that the claimant left Pakistan, went to Manchester, New York, and then Canada. The claimant had been in the USA since 1999 and when asked why he did not tell the truth at his POE interview, the claimant said that he was afraid to be sent back to Pakistan. Although not central to his claim, this inconsistency diminishes the claimant's credibility.
[11] The claimant testified that in 1992 he was beaten by the SSP and went to a private clinic for the necessary medical treatment. The claimant had no proof of this treatment and, when asked why, gave four different answers. The panel believes that the claimant was never beaten by the SSP because there were too many different answers to a very straightforward question.
[12] When asked if the claimant had been detained in Pakistan, he said no. Exhibit A-4, however, shows that he was detained in Pakistan in 1998, and he also told the Immigration officer during his interview that he had been detained (Exhibit M-4). The claimant explained the contradiction by stating that he had not declared his detention in Pakistan because he was afraid and apologized for not having told the truth. The panel finds the claimant's explanation unsatisfactory.
ARGUMENTS
Applicant
[13] The Applicant argues that the tribunal committed a reviewable error in concluding that the Applicant was not a Shia Muslim because he had not introduced any other proof of his faith except for a letter issued by the Montreal Jafferia Islamic Foundation. The tribunal also erred in determining that the Applicant was not beaten by the SSP because he did not produce supporting documentary evidence. The failure to produce supporting documentary evidence cannot reflect adversely on the Applicant's credibility in the absence of evidence which contradicts the Applicant's testimony.
[14] The Applicant submits that the tribunal erred when it rejected the Applicant's explanation as to why he made false statements at the POE and made its adverse findings of credibility. The tribunal also erred when it made an adverse finding of credibility, because the Applicant had declared at the POE that he had been detained in Pakistan when in fact he never was detained. The Applicant explained that he did not tell the truth at the POE because he was afraid to be sent back. The tribunal erred in its assessment of the Applicant's credibility when it emphasized the Immigration notes at the POE.
[15] The Applicant submits that the tribunal erred in disbelieving the Applicant's testimony concerning his claim of asylum in the USA. The tribunal chose to rely on the documentary evidence in preference to that of the Applicant, but never explained the reasons why. Counsel at the hearing referred to the US Border Patrol document (M-1) and to the acronym D.F.O. and the date and year inserted as evidence to show that he had applied for asylum in the USA.
[16] The Applicant submits that the Applicant's credibility and plausibility should be assessed in the context of his country conditions and other documentary evidence available to the Board. The Applicant underlines that the national binder of the I.R.B. and the new documentation presented demonstrate the degree to which sectarian terrorism is rampant, with the participation of politicians and police in such acts, and their protection because of impunity for political crimes. The Applicant points to many stories of the targeting of Shia Muslims in Pakistan, and alleges that the Applicant would not be able to obtain protection in Pakistan against the SSP terrorists who are threatening his life.
[17] During the hearing, the Applicant raised for the first time the fact that there was no transcript of the IRB hearing. (I note, however, that this has been known since early August 2004 when the tribunal's record was filed in preparation for this hearing). I will not deal with this argument since it should have been brought up earlier. It would be unfair for the Respondent.
Respondent
[18] The Respondent submits that it was reasonable for the Board to conclude as to the overall lack of credibility of the Applicant, considering that the Applicant admitted having voluntarily omitted to mention that he was living in the United States (USA) since 1999. The Applicant's declarations that he claimed refugee status in the USA in 1994 and that he later came to Canada were inconsistent with the documentary evidence provided by the American authorities. It is well-established that the Board is entitled to give more weight to the documentary evidence than to the testimony of a claimant, particularly when the testimony of the claimant on other issues lacks credibility.
[19] The Respondent submits that given the Applicant's lack of credibility, it was reasonable for the Board to draw a negative inference from his failure to produce documentation that would have corroborated his allegations.
[20] The Respondent submits that it is not for this court to impose its own understanding of the facts, unless the decision of the Board was made in a perverse or capricious manner or without regard for the material before it. When the Board finds an Applicant not to be credible, it may extend this finding and conclude that there is no credible evidence relevant to an Applicant's claim, even without disbelieving every word the Applicant has uttered.
[21] The Respondent also submits that it is insufficient for the Applicant to rely on independent documentary evidence to establish a valid fear of persecution (Novina v. M.C.I., [1995] A.C.F. No. 1695 (QL) (Denault J.); Alexibich v. M.C.I., 2002 CFPI 53 (Pelletier J.). The Applicant should establish a correlation between the particular facts of his case and the independent documentary evidence, which he has not done.
THE STANDARD OF REVIEW
[22] The Board based its decision on a negative credibility finding. In questions of credibility, this Court cannot substitute its opinion for that of the Board unless the Applicant can demonstrate that the Board's decision was based on an erroneous finding of fact that it made in a capricious manner or without regard for the material before it.
[23] Furthermore, the Board's decision will only be disturbed if it is sufficiently unreasonable to attract this Court's intervention. It has been established that the Board is a specialized tribunal capable of assessing the plausibility and credibility of a testimony, to the extent that the inferences which it draws from it are not unreasonable and its reasons are expressed clearly and comprehensibly.
[24] Therefore, the standard of review should be patent unreasonableness : Canadian Union of Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793 at para. 85 :
[T]he standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per LaForest J., at pages 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact-finding be patently unreasonable.
ANALYSIS
[25] As the Federal Court of Appeal has stated in Sheikh, a tribunal's perception that a claimant is not credible with respect to a material element of his or her claim for refugee status may effectively amount to a finding that there is no credible evidence for that claim. However, the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality.
[26] I am not convinced the Board based its decision on patently unreasonable errors or that it acted arbitrarily or unfairly. There were numerous inconsistencies between the Applicant's testimony and the information before the Board. Although, not determinative in themselves, each factor was considered by the Board and resulted in an adverse finding of credibility.
[27] Inconsistencies appeared in various areas of the Applicant's testimony, which diminished the Applicant's credibility. When asked why he had no proof of his medical treatment following the alleged beating by the SSP the claimant gave four contradictory answers. It was not unreasonable for the Board to believe that the claimant was never beaten by the SSP based on the Applicant's different responses to a very straightforward question. The Applicant also contradicted himself when asked if he had ever been detained in Pakistan. In his testimony, the claimant said that he had not, but there was documentary evidence showing that he was detained in 1998, which he confirmed during his interview with the Immigration officer on May 26, 2002.
[28] The Board is entitled to give more weight to documentary evidence than to the testimony of a claimant, particularly when the testimony of the claimant on other issues lacks credibility. In the present case, when assessing whether the claimant had entered Canada, the Board gave more weight to the information provided by the US Border Patrol than to the claimant's testimony as they had no reason to doubt the information provided by Border Patrol. The claimant was also not able to provide any proof that he had previously claimed asylum in the
USA and therefore the Board relied on the US Border Patrol fax that showed no claim had ever been. The argument that the acronym D.F.O. and the date and year inscribe that appear on the document file as M-1 is not evidence that indicate that the Applicant had claimed asylum in the USA. There is no evidence that explains that D.F.O. means the date and year when the asylum was claimed.
[29] It has been held by the Federal Court of Appeal in Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (F.C.A.), that the failure to produce supporting documentary evidence cannot reflect adversely on the Applicant's credibility in the absence of evidence which contradicts the Applicant's testimony. In light of the fact that there was ample evidence that contradicted the Applicant's testimony with respect to coming to Canada and claiming asylum in the USA, it was not unreasonable for the Board to draw a negative inference from the Applicant's failure to produce documentation that could have corroborated his allegations.
[30] In assessing the Applicant's credibility the Board did not accept the letter produced by the Applicant as proof of his religion. This was not unreasonable given the expertise of the Board which has specialized knowledge of Shia claims. The Board claims that more documents are usually introduced by Shias in support of their faith. The Applicant had 14 years of education and therefore the Board was not satisfied that the Applicant did not introduce any other proof of his faith simply because his counsel had not told him to provide such documents.
[31] If there is ever a factual situation where credibility can be assessed in almost a black and white manner, it is this situation. The credibility of the Applicant was brought into question at least six times. I have reviewed each of these findings and found them to all, without exception, have some reliable basis. There is no justification for this Court to intervene in the Board's decision.
[32] For the above-mentioned reasons, I would dismiss the application for judicial review.
QUESTIONS TO BE CERTIFIED
[33] The Applicant is proposing two questions for certification :
1) is article 3 of the Convention against torture mandatory before the Immigration and Refugee Board and PPRA process and in application of the Canadian Charter of Rights and Freedoms?
2) Does the current situation in Pakistan qualify as a situation that is described in the second paragraph of article 3 of the Convention against torture; that is to say, a situation where there are massive, systematic and flagrant violations of human rights?
[34] Counsel for the respondent opposes the certification for two reasons: that these questions cannot be answered in a vacuum and that the factual situation of this file does not justify such certification.
[35] I agree with Counsel for the Respondent. This case clearly bring up factual issues which, in essence, seriously affect the credibility of the Applicant. He was not believed to be a Shia Muslim. Therefore, I see no reason to consider the certification of these questions. They do not apply to the factual situation of this case for all the reasons given above and so, I will accordingly not certify the questions.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review be dismissed and no question will be certified.
"Simon Noël"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-769-04
STYLE OF CAUSE: SHAHID MAHMOOD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 19, 2004
REASONS FOR ORDER : The Honourable Mr. Justice Simon Noël
DATED: October 29th, 2004
APPEARANCES:
Mr. Stewart Istvanffy FOR APPLICANT
Ms. Sylviane Roy FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Stewart Istvanffy FOR APPLICANT
Montréal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec