Date: 20031107
Docket: IMM-3556-02
Citation: 2003 FC 1306
Ottawa, Ontario, this 7th day of November, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
NADEEM FAROOQ MIRZA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of the negative decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated June 14, 2002.
Background
[2] Nadeem Farooq Mirza is a 28-year old citizen of Pakistan. He arrived in Toronto on July 27, 2001, and on August 1, 2001, he stated his intention to make a Convention refugee claim in Calgary. The applicant claims a well-founded fear of persecution by the Pakistan Muslim League (the "PML"), the Pakistani police, and the current military government due to his political opinion as a member and office holder of the Pakistan People's Party (the "PPP").
[3] The applicant asserts in his Personal Information Statement ("PIF") that he became a member of the PPP in Gujrat, Punjab Province, in 1992 and was appointed Information Secretary of his PPP ward in Gujrat in March 1995. It is the applicant's evidence that he worked for both the National Assembly and the Provincial Assembly PPP candidates during the 1993 elections. The PPP were elected as the national government during that election. He claims that his political involvement led to threats and attacks by PML members and supporters of the Chaudhry brothers, a prominent PML family. These attacks sometimes required medical attention and one beating, in May 1998, left him unable to walk. He claims that when participating in political rallies he and others were often beaten by police officers, and that he required one week of medical attention after one such incident. The applicant claims that he was arrested, detained and tortured by police on three separate occasions: November 1996, April 1999 and March 2000. During the month of March 2001, the claimant worked for the PPP candidate in the Nazim elections in Gujrat. The claimant received threats from the PML opponent, a Chaudhry brother, who threatened him with retaliation. The applicant claims that police and PML militants connected with the Chaudhry brothers have since raided his home and harassed his family. At the hearing, the applicant also alleged that a First Information Report ("FIR"), a Warrant of Arrest and a Proclamation had all been issued against him by the Pakistani police.
Board's Decision
[4] The Board accepted that the applicant was a PPP member and was appointed to the position of Information Secretary in his PPP ward in Gujrat in 1995. However, the Board found there was insufficient credible evidence before it to establish that the applicant's fears were well-founded. This assessment was based on numerous factors.
[5] The Board first noted that the letter the applicant submitted from the PPP District President for Gujrat as evidence of past persecution only referred to police hostility at public meetings and did not refer to the applicant being personally threatened or attacked by the PML militants or the Chaudhry brothers. Further, the letter makes no reference to the applicant being arrested or beaten while in police custody.
[6] Secondly, the Board noted that a medical certificate submitted by the applicant to corroborate an attack by the PML militants was dated March 5, 1998, approximately 2 months before the particular beating was alleged to have occurred, on May 1998. The certificate was also in reference to previous wounds that had not yet healed. As well, the issuing doctor was a heart specialist not a general practitioner. As documentary evidence before the Board indicated that Pakistan has a reasonably developed medical system, the Board found it implausible that a heart specialist would provide such general treatment. For these reasons, the Board questioned the credibility of the medical certificate.
[7] Thirdly, the Board noted that when making his Convention refugee claim in Canada, the applicant advised the immigration officer that he was kidnapped by the PML members in 1999. He later denied the kidnapping to the Board and claimed only to have been beaten by the PML members whenever they wanted to. The applicant claimed that his interpreter was mistaken. The Board rejected this explanation, and found that this discrepancy and omitting to tell the officer about the beatings undermined his credibility.
[8] Fourthly, the Board considered documentary evidence which reported that the Chaudhry brothers played an important role in provincial politics in Gujrat, Punjab Province. The Board found implausible that the annual reports on the fate of human rights in Pakistan and a relatively free Pakistani press had not documented or reported incidents of violence by the Chaudhry brothers, if such incidents had occurred.
[9] For the above reasons, the Board did not believe the applicant was specifically targeted and physically mistreated by the PML supporters associated with the Chaudhry brothers as is alleged.
[10] The Board then considered the credibility of the applicant's fear of persecution by the Pakistani Police. The Board acknowledged the documentary evidence that there was police action in response to political protests, and found it plausible that the claimant was arrested and detained by police. However, the Board found insufficient evidence to support that the claimant was mistreated by police, or to support a well-founded fear of persecution from Pakistani police. Though the applicant asserted that police arrested, detained and severely beat him on three separate occasions, the absence of corroborative medical reports or records led the Board to disbelieve the applicant's allegations of police abuse. During an arrest in November of 1996, the applicant claimed to have been beaten repeatedly for two days, yet testified the only treatment he received was an herbal lotion from his mother. The Board found it implausible that given the severity of his beatings, he did not require medical treatment. As well, documentary evidence pertaining to political unrest in Pakistan at the time of the police intervention indicated that police were merely acting pursuant to the law of general application to maintain public peace and order.
[11] The Board also questioned the authenticity of both a FIR and a Warrant of Arrest submitted by the applicant for the following reasons: First, the applicant did not mention the Warrant of Arrest in his PIF nor produce either the FIR or the Warrant for quite some time, despite the importance of such documents to his case. He was aware of the registration of the FIR prior to departing Pakistan and testified that he became aware of the Warrant after his arrival in Canada in September of 2001. The Board found that this substantial delay in obtaining the documents was unreasonable and impugned his credibility. Second, the Board questioned the applicant on why his lawyer in Pakistan would have written the letter that dealt with the issuance of the FIR and Warrant of Arrest almost one month before he obtained the certified copies of these documents. This same lawyer claimed to have possession of the documents. The Board found the applicant's response unsatisfactory and determined that such discrepancies called the authenticity of the documents into question. Third, the Warrant of Arrest had an irregular return date of 10 days, not the standard 14-day return date as reported in the documentary evidence. Further, neither the Warrant nor the FIR were original certified copies, but mere faxes. As well, the Boardl had documentary evidence that indicated the easy accessibility to fraudulent police and court documents in Pakistan. For all of these reasons, the Board determined that the applicant fraudulently procured the documents, and his claim of criminal charges and pursuit by the police was not believable. The Board concluded that there was insufficient evidence to establish that the applicant's fears of persecution at the hands of the PML or the Pakistani police were well-founded or more than a mere possibility. The Board, therefore, determined that Nadeem Farooq Mirza was not a Convention refugee.
Issues
[12] The applicant raises five issues on judicial review:
A. Did the Board err in law?
B. Did the Board base its decision on erroneous findings of fact made in a perverse and capricious manner or without regard to the evidence before it?
C. Did the Board base its decision on its own assumptions and contrary to the evidence before it?
D. Did the Board fail to provide reasons for its adverse findings of credibility?
E. Did the Board misinterpret and misapply the definition of persecution in its decision?
Standard of Review
[13] The applicant challenges the Board's adverse credibility and plausibility findings. The appropriate standard of review on findings of fact and credibility is patent unreasonableness. The Federal Court of Appeal has determined that the Board, as a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony. As long as the inferences drawn by the Board are not so unreasonable as to warrant intervention, its findings are not open to judicial review: Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 at 316-317.
Analysis
A. Did the panel err in law?
[14] In his written representations the applicant argues that the Board erred in law when it applied a principle of absolute certainty and not the correct standard of a balance of probabilities to the applicant's evidence. The applicant does not take the Court to any specific examples of this alleged error, it is therefore difficult to assess the applicant's argument.
[15] The respondent submits that this is a bold and unsupported assertion by the applicant and that the mere fact that all evidence was thoroughly examined does not mean that a higher standard of review was applied.
[16] I see no evidence that the test used by the Board was one of absolute certainty. Though the Board did thoroughly explore all of the evidence and gave explanations of why each piece was accepted or rejected on the basis of credibility, there is nothing to suggest that higher evidentiary standard was used. I am of the view that the Board weighted the evidence before it on a "balance of probabilities" standard, which is the appropriate test in the circumstances.
B. Did the panel base its decision on erroneous findings of fact made in a perverse and capricious manner or without regard to the evidence before it?
[17] The applicant submits that the Board erred in law when it did not first render a decision on the applicant's claim based on the evidence the Board accepted as credible, namely that he was both a member and the Information Secretary of the PPP and that he was detained by the police for participating in political rallies. The applicant's argument is without merit. The Board is required to consider all of the evidence before it and render a decision based on the totality of the evidence, not solely on the evidence it found credible. In support of his argument, the applicant cites the decisions of Yaliniz v. Canada (Minister of Employment and Immigration) (F.C.A.) [1988] F.C.J. 248 (QL); (1988), 7 Imm. L.R. (2d) 163; and Djama v. Canada (Minister of Immigration) (F.C.A.), [1992] F.C.J. 531 (QL).
[18] I am of the view that both Yaliniz, supra., and Djama, supra., are distinguishable from the applicant's case and do not support the proposition advanced by the applicant. In Yaliniz, the Federal Court of Appeal found that the CRDD should have assessed whether there was credible evidence to support the claimant's well-founded fear of persecution even though he had obviously exaggerated his testimony. In Djama, the Court set aside the CRDD's decision because even if some aspects of the applicant's circumstances seemed doubtful, there was otherwise sufficient evidence to establish a well-founded fear of persecution.
[19] In the case at bar, the Board clearly found that the applicant lacked credibility in general and determined that there was no credible evidence to support his fear of persecution. I am satisfied that the Board did not reach a patently unreasonable finding of fact nor did it ignore documentary evidence in holding that the applicant's story was not plausible. The evidence accepted or found to be plausible, namely that the claimant was a PPP member and Information Secretary, and that he was detained by the police for participation in a political rally, are not determinative of a successful Convention refugee claim. The applicant was contradictory in his testimony on numerous occasions and adduced documents of suspect authenticity. A negative finding of credibility under such circumstances is not patently unreasonable.
C. Did the panel base its decision on its own assumptions and contrary to the evidence before it?
[20] The applicant submits that the Board erred in rejecting his claim based on the following findings of fact: (1) that the letter issued by the president of the PPP did not reference the claimant's frequent attacks and threats by the PML members; and (2) that there is no documentary evidence that the Chaudhry brothers were involved in violence against the PPP members. The applicant submits that the panel had no evidence to support the finding that he was not physically mistreated when in police custody. The applicant argues that the Board had no reason to disbelieve his unequivocal and cogent evidence of police brutality.
[21] The respondent submits that though the Board did make note of the above noted facts, they were certainly not the only facts which led the Board to conclude that the applicant's claim was not well-founded. The Board noted many other discrepancies and implausibilities in evidence that went to the heart of the applicant's claim. As well, the respondent submits that the applicant's argument that evidence given under oath must be presumed to be true is of no assistance in these circumstances, since there are valid reasons to doubt this evidence.
[22] This issue seems to be a mere variation of the previously discussed issue raised by the applicant. In essence, both issues deal with credibility and plausibility findings of the Board. As stated earlier in these reasons, such findings are not to be disturbed unless they are patently unreasonable. I am of the view that the Board did not arrive at a patently unreasonable finding of fact or base its decision on its own assumptions contrary to the evidence before it. The evidence of the applicant was fully considered as were other neutral sources of information on issues such as the political climate in Pakistan and the behaviour of political parties and the police. It is important to note that the Board had before it other evidence, which it properly considered and weighed, such as the applicant's medical record which was dated before his alleged assault, and a prematurely dated letter from his lawyer pertaining to a FIR and Warrants that had not yet been certified. The Board provided detailed reasons for its findings. I find that the Board's credibility findings are not patently unreasonable and its conclusion, that the applicant was generally not credible, was open to it on the evidence.
D. Did the panel fail to provide reasons for its adverse findings of credibility?
[23] The applicant submits that the Board erred in law when it failed to give reasons in clear and unmistakable terms as required by the decision of Hilo v. M.E.I. (F.C.A.), [1991] F.C.J. 228 (QL), 30 N.R. 236. The applicant submits that the Board attacked the credibility of the claimant without any evidence and then failed to provide reasons for this attack in clear and unmistakable terms. I am of the view that the Board gave a detailed account of the reasons for rejecting the applicant's account.
[24] The cumulative weight of the applicant's implausible account along with the lack of credible supporting evidence, when weighed against credible and reliable independent documentary evidence that often contradicted the applicant's evidence, led the Board to conclude that his claim was not credible. Having carefully read the Board's decision and having carefully reviewed the evidence in the tribunal record upon which the Board based its decision, I find that the Board's reasons for its negative credibility findings are clearly articulated and support the Board's conclusion in clear and unmistakable terms.
E. Did the panel misinterpret and misapply the definition of persecution in its decision?
[25] This issue is not addressed by the applicant or the respondent beyond the opening list of issues in their written materials. Consequently, this question will not be further considered.
Conclusion
[26] For the reasons set out above, the judicial review will be dismissed.
[27] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated June 14, 2002, is dismissed.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3556-02
STYLE OF CAUSE: Nadeem Farooq Mirza v. MCI
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: Tuesday, September 16, 2003
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: November 7, 2003
APPEARANCES BY:
Mr. Satnam S. Aujla For the applicant
Tracy J. King For the respondent
SOLICITORS OF RECORD:
Mr. Satman S. Aujla For the applicant
Yanko Merchant Law Group
400, 2710 - 17th Avenue S.E.
Calgary, Alberta T2A 0P6
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
10199 - 101 Street N.W. - Suite 211
Edmonton, Alberta T5J 3Y4
FEDERAL COURT
Docket: IMM-3556-02
BETWEEN:
NADEEM FAROOQ MIRZA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER