BETWEEN:
SABA MUMTAZ
NABEEL MUMTAZ
NIDA MUMTAZ
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
INTRODUCTION
[1] These reasons follow the hearing on the 14th of November, 2006 of an application for judicial review of a decision of the Refugee Protection Division (the “RPD”) of the Immigration and Refugee Board wherein the RPD determined the Applicants not to be Convention refugees or persons otherwise in need of like protection in Canada. The decision under review is dated the 16th of November, 2005.
BACKGROUND
[2] The applicants are citizens of Pakistan. Nighat Shaheen (the “principal Applicant”), is the mother of Saba Mumtaz and Nabeel Mumtaz and Nida Mumtaz, Saba being her daughter and Nabeel and Nida being her twin sons. The Applicants base their claim to Convention refugee protection, or like protection in Canada, on the basis: first of their religion, Sunni Muslims; secondly, their perceived political opinion deriving from the fact that the principal Applicant’s husband and father of the three (3) younger applicants was a member of Sepah-e-Sehaba (“SSP”); and lastly, their membership in a particular social group, family members of a member of the SSP fearing persecution at the hands of the Tehrik-e-Jafariah (“TJP”), a radical element of the Shia Muslim religious sect.
[3] The principal Applicant alleges that she was born in Jhelum, Pakistan and lived there, and raised her children there, at all material times. She alleges that on the 3rd of March, 1999, her husband was kidnapped by the TJP. Following learning of the kidnapping, the Applicants immediately fled to the home of a friend of the principal Applicant’s husband. They allege that, in the brief time they were there, they were sought out by the TJP.
[4] The Applicants again fled to the home of the principal Applicant’s sister and her husband in Multan. They stayed there for about fifteen (15) days.
[5] While the Applicants were in Multan, they allege that the principal Applicant’s older son, who resided in Lahore, had also been kidnapped. In fear for their lives, the Applicants once again fled, this time, from the home of the principal Applicant’s sister.
[6] The Applicants flight took them to Karachi where they remained for about four (4) months. While there, the principal Applicant alleges that an unsuccessful attempt was made to kidnap one of her Applicant sons.
[7] Fearing for their safety in any part of Pakistan, the Applicants fled to Canada on the 19th of July, 1999. When the Applicants first came to Canada, in July of 1999, and when the principal Applicant completed her narrative statement as part of her Personal Information Form in September of 1999, she had no idea of the whereabouts of her husband or of his fate or the fate of her older son.
[8] The Applicants allege that reports were filed with the police in regard to the separate kidnappings of both the principal Applicant’s husband and her elder son. They further allege that no investigative activity of consequence followed. The principal Applicant testified that her husband died at the hands of the TJP on or about the 18th of March, 2002. She provided to the RPD, on the 14th of November, 2005 a death certificate for her husband.
[9] This judicial review is of the third decision of the RPD and its predecessor in relation to the Applicants’ claim. The matter was first heard by the CRDD on the 5th of June, 2000. It resulted in a decision against the Applicants. Review of that decision was sought from this Court and the decision was set aside by decision dated the 18th of June, 2001. The matter was again heard by the CRDD, this time resulting in a decision dated the 12th of March, 2002. Once again, the Applicants were unsuccessful in their claim. The second negative decision was set aside on judicial review by this Court, in this case, dated the 17th of December, 2003.
THE DECISION UNDER REVIEW
[10] In the decision under review, the RPD acknowledges the two earlier hearings of the Applicants’ claim to Convention refugee status and the resultant decisions of this Court referring the claims back for re-determination.
[11] The RPD found that “[credibility] emerged as the key issue in this claim.” It wrote:
The panel had credibility concerns with the principal claimant’s material evidence that was not resolved in her favour. I found much of the claimant’s testimony to be implausible, giving rise to enough reason to rebut the presumption of truthfulness on her part.
[12] The RPD continued:
The determinative issue in this claim is the objective component on the well-founded fear of persecution, notably whom the claimants fear would persecute them should they return to Pakistan.
[13] The RPD expressed concern regarding the lack of corroborating evidence to support the Applicants’ claims, particularly after the lapse of almost six (6) years from the date of the Applicants’ arrival in Canada, their two (2) previous unsuccessful claims that were nonetheless successfully judicially reviewed before this Court, and the resulting experience that the Applicants had with the CRDD’s concerns with their claims.
[14] The RPD went on to consider whether or not there existed, in Pakistan, state protection for the Applicants. While acknowledging that state protection in Pakistan for persons such as the Applicants was less than perfect, it determined:
The Panel determines, on a balance of probabilities, that the state of Pakistan has in place a judicial system, a civilian police force and a federal army capable of providing protection to its citizens.
[15] The RPD considered whether there existed “compelling reasons” to grant Convention refugee status to the Applicants in the light of changed circumstances in Pakistan. It concluded that, because of changed circumstances, because the Applicants were determined not to be credible and because the Applicants were not personal witnesses to atrocities and had not personally experienced “appalling” or “atrocious” experiences, that compelling reasons were not here present. Finally, the RPD acknowledged the psychological report that was before it with regard to the principal Applicant, noted that the report was based on the evidence of the principal Applicant herself, and concluded that, given the RPD’s negative credibility findings, “…the panel does not accept that this psychological report supports the evidence provided by the claimant as the cause of the symptoms [found in the psychological report to exist].”
[16] The RPD concluded:
Considering that the claimant was found not to be a credible witness, the panel is satisfied that the claim is not subjectively well founded and considering the alternative, there is adequate although not perfect protection being provided by the state, the panel is therefore satisfied that the claim is not objectively well-founded.
Based on the foregoing analysis, the panel does not accept that the evidence presented in this claim has established that there is a reasonable chance or serious possibility that these claimants would be persecuted for a Convention refugee ground or that they would be in danger of torture, or that they would be put at risk to life, or be subjected to cruel and unusual treatment or punishment should they return to Pakistan.
THE ISSUES AND SUBMISSIONS
[17] Counsel for the Applicants, in the Memorandum of Argument filed on behalf of the Applicants, cites only one (1) issue, namely:
Did the [RPD] err in law in ignoring and/or misinterpreting the evidence before it when it determined that the [principal] Applicant lacked credibility.
Against that issue statement, counsel made submissions on:
- the determination regarding the credibility of the Applicants;
- the findings regarding the kidnappings of the principal Applicant’s husband and elder son, and the husband’s alleged death;
- the determination that no weight should be given to the death certificate regarding the principal Applicant’s husband;
- the failure to update the principal Applicant’s Personal Information Form narrative statement, particularly regarding alleged threats to the Applicants by the TJP since the Applicants’ arrival in Canada;
- the determinations of the RPD regarding lack of evidence of police response to the First Information Reports filed with respect to the two kidnappings and the failure of the Applicants or their friends and relatives in Pakistan to follow up on those Reports; and
- the finding regarding state protection and the failure of the RPD to find “compelling reasons” and to give weight to the psychological report filed on behalf of the principal Applicant.
[18] Counsel for the Respondent simply urged that the RPD made no reviewable error in finding as it did and, in particular, that it made no reviewable error in determining that the failure by the Applicants to supplement the principal Applicant’s Personal Information Form Narrative, their failure to supplement, during the long history of this matter before the RPD and its predecessor, their claim with corroborating documentary evidence, and that the RPD’s determinations regarding adequate state protection, lack of “compelling reasons” to justify granting the Applicants’ claims and rejection of the connection between the psychological report and the principal Applicant’s story, by reason of its finding regarding lack of credibility in the principal Applicant’s story, were all reasonably open to it.
ANALYSIS
[19] As earlier indicated in these reasons, the Applicants’ claim has been before the RPD and its predecessor on three (3) separate occasions. On the first two (2) occasions, the RPD’s predecessor was critical of the Applicants’ evidence underlying their claims. For whatever reason, the Applicants, given the occasions provided by earlier decisions of this Court, took little initiative to bolster their claims, particularly by pursuing through their friends and relatives who remain in Pakistan updated evidence. On the third occasion when the Applicants went back before the tribunal of first instance, in this case, the RPD, the Applicants went with essentially the same evidence that they had first relied upon. It surely could have come as no surprise to them that the same result flowed.
[20] I am satisfied that the RPD was cognizant of the bases on which this Court had earlier set aside negative decisions on their claims.
[21] Essentially, on the decision here under review, apart from the aspect of state protection, the determination is one of a want of credibility, a simple disbelieving of the Applicants’ tale of events. No explanation was provided before the Court as to why the Applicants could not have bolstered their tragic story and, why indeed, they appear not to have even tried to do so.
[22] While counsel for the Applicants urged that the RPD failed to acknowledge and give credence to directions previously provided by this Court to it with respect to these claims, I conclude that such is not the case. It is apparent on the face of the RPD’s reasons that it was conscious of previous decisions of this Court on these claims, and I am satisfied that it in no sense ignored any directions this Court may have given.
[23] Against a standard of review of patent unreasonableness, and I conclude that that is the appropriate standard of review of the decision herein given that it turns largely on the issue of the credibility to be accorded to the Applicants’ claims, based on the limited evidentiary record, I conclude that the RPD’s decision was open to it.
[24] In the result, this application for judicial review will be dismissed.
[25] At the close of the hearing, counsel were advised of the Court’s conclusion. When consulted, neither counsel recommended certification of a question. No question will be certified.
“Frederick E. Gibson”
JUDGE
November 28, 2006
Ottawa, Ontario
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7264-05
STYLE OF CAUSE:
NIGHAT SHAHEEN, SABA MUMTAZ, NABEEL MUMTAZ, NIDA MUMTAZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 14, 2006
REASONS FOR ORDER: GIBSON J.
APPEARANCES BY:
Krassina Kostadinov For the ApplicantS
Angela Marinos For the Respondent
SOLICITORS OF RECORD:
Waldman & Associates
Barristers and Solicitors
Toronto, Ontario For the ApplicantS
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario For the Respondent