Date: 20010529
Docket: IMM-3686-00
OTTAWA, ONTARIO, THE 29th DAY OF MAY 2001
IN THE PRESENCE OF THE HONOURABLE TEITELBAUM J.
Between:
Arif MUHAMMAD
Applicant
And:
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
ORDER
For the reasons set out in the Reasons for Order, the application for judicial review is allowed, and the matter is remitted to a different panel for redetermination.
Max M. Teitelbaum J.F.C.C.
Certified True Translation
Sophie Debbané, LL.B.
Date: 20010529
Docket: IMM-3686-00
Neutral citation: 2001 FCT 537
Between:
Arif MUHAMMAD
Applicant
And:
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
INTRODUCTION
[1] This is an application under section 82.1 of the Immigration Act (the Act) for judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated June 14, 2000, determining that Arif Muhammad (the applicant) is not a Convention refugee, on the ground that his testimony was not credible.
FACTS
[2] The applicant, who states he was born in Pakistan, claimed refugee status on the basis of a well-founded fear of persecution by the Pakistan Muslim League (the PML) if he returned to his country by reason of his political opinion and membership in the Pakistan Peoples Party (the PPP).
[3] According to the applicant, he became a member of the PPP in 1988 and participated in the party's election campaign that same year. He participated in all the PPP meetings held in his region and organized all of the meetings in his neighbourhood.
[4] The applicant contends that in 1991 he was arrested and detained by the police for 36 hours.
[5] The applicant stated that he was in charge of writing all of the speeches that Benazir Bhutto made in his region during the 1993 election campaign. After the election, the police came to the applicant's home on numerous occasions and also his store.
[6] The applicant also stated that on April 4, 1997, his father's store was vandalized and the police did nothing. On April 14, 1997, members of the PML attacked and beat him. Once again, the police refused to help him.
[7] The applicant contends that he was detained by the police for two days during the period of the 1998 municipal elections in which he participated.
[8] The applicant contends that as a result of an attack on members of the PML in April 1999 he was seriously injured and had to be hospitalized.
[9] The applicant contends that in September 1999 his father sent him to stay with an "uncle" (a friend of the family he calls uncle). He further contends that the police raided his father's home and beat him.
[10] The applicant contends that he subsequently learned that the general secretary of the PML had registered a "First Information Report" (an FIR) against him. An FIR is a complaint report, a charge filed with the police based on which the police may arrest someone. An officer at the police station told the applicant's lawyer that a high-ranking individual had ordered the FIR. The applicant's lawyer then told him that he had been unable to obtain information concerning the FIR.
[11] On December 25, 1999, the applicant left Pakistan to come to Canada.
DECISION OF THE BOARD
[12] The Board determined that the applicant was not a Convention refugee on the ground that he was not credible. He failed to establish that he had been persecuted by the PML or the police. He further failed to establish that he would be persecuted by the PML or the police if he returned to Pakistan.
[13] Moreover, the Board concluded that having regard to the fact that the applicant was not credible, particularly with respect to the crucial points, his refugee claim had no credible basis as defined in subsection 69.1(9.1) of the Act.
ISSUES
[14] Did the Board err by determining that the applicant was not credible?
[15] Did the Board err by determining that the claim had no credible basis?
ARGUMENTS OF THE PARTIES
(a) Applicant
[16] The applicant contends that the Board erred by rejecting his claim even though he had introduced documents that corroborated his testimony.
[17] The applicant contends that since a claimant's fear of persecution is an essential element of a claim, the Board has a duty to consider all of the evidence offered to substantiate that fear. In this case, the applicant contends that the Board failed to do a complete analysis of his claim by failing to have regard to his political opinions and membership in the PPP in assessing his fear of persecution.
[18] The applicant had filed his PPP membership card in evidence as well as two letters from members of the PPP. The applicant contends that the Board erred by failing to state in its reasons the grounds on which it rejected evidence that was directly related to his claim and that corroborated his testimony.
[19] The applicant points out that ample evidence that there is a high level of political tension in Pakistan and that members of the PPP are regularly subjected to violence by the PML was presented at the hearing.
[20] The applicant contends that the Board's conclusion that there was no credible basis for his claim was unreasonable since he had personal documents confirming his membership in the PPP and two letters confirming his activities within the PPP and the problems he claims to have had because of those activities.
[21] The applicant contends that the Board committed a reviewable error when it concluded that there was no credible basis for this claim because there was at least one piece of credible evidence other than the applicant's oral testimony that could corroborate his claims that the members of the PPP are persecuted in Pakistan.
(b) Respondent
[22] The respondent asserts that the applicant's arguments are not such as would warrant intervention by this Court. The Board listed a number of reasons to support its general finding that neither the applicant's testimony nor the documents he submitted to substantiate his claim were credible. Furthermore, the respondent contends that the Board's perception that a claimant is not credible amounts to a finding that there is no credible evidence that could justify granting a claimant refugee status.
[23] The respondent submits that arguments based on his membership in the PPP were not believed and that, even if they had been believed, the membership in the PPP would have been insufficient, having regard to the fact that the applicant presented no documentary evidence proving that members of the PPP are persecuted in Pakistan.
[24] Furthermore, even if the applicant had introduced evidence that members of the PPP are persecuted, that would not have justified intervention by this Court since the fear alleged must be personalized.
[25] The respondent further contends that the fact that the Board found that the applicant was not credible means that there was no credible evidence that could support the applicant's claim. As a result, the Board did not err when it found that the claim had no credible basis.
ORDER SOUGHT
[26] The applicant is asking the Court to set aside the decision of the Board and to remit the matter to a different panel for reconsideration.
DECISION
[27] I have decided to allow this application for judicial review and to remit the matter to a different panel for reconsideration. The Board must not rely on the previous decision, which I have rejected. The applicant will be entitled to a new hearing.
[28] Moreover, the new hearing must be held in French if the Board members are French-speaking or in English if they are English-speaking.
[29] The reason why I make that comment is this. At the beginning of the judicial review hearing, I read, or at least tried to read, the transcript of the hearing before the Board. I found so many "inaudible" notations that I could not understand the meaning of the questions or answers.
[30] I also found, and I believe that this resulted from the fact that the Board members were French-speaking, that the grammar was so poor that I had sometimes difficulty understanding the questions put to the applicant since the hearing was held in English. I do not understand why the hearing was held in English and the applicant was obliged to use an interpreter as a result.
[31] It is not my intention to denigrate the Board members. The members determined that the applicant had no credibility. This is a very important decision for the applicant. If I do not completely understand what was said by the applicant and if I do not completely understand the questions asked by the members, I cannot then determine whether this Court should intervene in the Board's decision.
[32] As a result, the application for judicial review is allowed, and the matter is remitted to a different panel for redetermination in accordance with these reasons.
Max M. Teitelbaum
J.F.C.C.
Ottawa, Ontario
May 29, 2001
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-3686-00
STYLE OF CAUSE: ARIF MUHAMMAD v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 25, 2001
REASONS FOR ORDER OF TEITELBAUM J.
DATED: May 29, 2001
APPEARANCES:
Marie-Claude Paquette FOR THE APPLICANT
Guy Lamb FOR THE RESPONDENT
SOLICITORS OF RECORD:
Marie-Claude Paquette
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT