Date : 20031107
Docket : IMM-5845-02
Citation : 2003 FC 1317
BETWEEN :
MASROOR (MASROORLE) ALI
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for judicial review pursuant to section 18.1(3)b) of the Federal Court Act, R.S.C. 1985, c. F-7, in relation to a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") rendered October 25, 2002, wherein the Board determined that Masroor (Masroorle) Ali (the "applicant") was not a Convention refugee or a person in need of protection.
[2] The applicant is a 27-year-old Shia Muslim citizen of Pakistan. He claims to have a well-founded fear of persecution at the hands of the Sunni fundamentalists by reason of his religion.
[3] The applicant alleges that, as the son of a respected Shia Muslim highly involved in his religious community, he has from an early age followed in his father's footsteps by taking part in Majlis-e-Aza programs (religious gatherings) and by becoming in 1994 a member of Imam Bargah, a religious organisation with social goals.
[4] In May 2000, the applicant allegedly became General Secretary of Imam Bargah Qasr-e-Zainab. In this position, the applicant arranged meetings, assigned responsibilities, collected donations and arranged Majlis-e-Aza. Shortly after his appointment to that position, he began receiving threats from the Sipah Suhaba Pakistan (the "SSP") ordering him to stop his activities. The claimant ignored these threats.
[5] On two different occasions, first in November 2000 an then in April 2001, the applicant was allegedly attacked by four SSP members, causing him to seek medical help. The applicant went to the police but received no satisfactory response.
[6] On 5 June 2001, while the applicant was at the Imam Bargah, some members of the SSP visited his parents' home, fired a bullet in the wall and threatened that the next bullet would be for the applicant.
[7] The father alerted the applicant over the telephone to not return to his home and to stay with his aunt; he subsequently arranged for his son to leave Pakistan on July 2, 2001.
[8] In its decision the Board found the applicant's evidence and testimony to be implausible and fraught with inconsistencies, and hence was not satisfied that the applicant had demonstrated a well-founded fear of persecution. The Board also concluded that applicant was not a person in need of protection in that his removal to Pakistan would not subject him personally to risk for his life or cruel and unusual treatment or torture.
[9] To reach its conclusion, the Board referred to various passages in the applicant's oral testimony which justified it doubting the credibility of the applicant.
[10] First, the Board rejected the applicant's explanation for why he was the only Imam Bargah's committee member targeted by the SSP.
[11] As well, the Board pointed out that if organizing religious events in neighbouring villages contributes to visibility and is a factor in becoming a target of the SSP, then it is implausible that the applicant's father was not a target.
[12] Moreover, the Board found the circumstances of the events of 5 June 2003 to be implausible. Considering that on previous occasions, the SSP members had no difficulty locating the applicant to deliver their message, and yet the day they allegedly intended to kill the applicant, they visited his home when he was absent; why would they not have sought him out at the Imam Bargah, located nearby and a very likely place to find their target.
[13] The Board considered these inconsistencies to be sufficient to justify denying the applicant's claim.
[14] The applicant submits that the issue of credibility alone is not determinative of the question whether he is a Convention Refugee. Relying on an extensive case law, the applicant argues that since the Board did not doubt that he was a Shia Muslim and since it did not express any concerns with the letter submitted from the Imam Bargah in Pakistan corroborating his involvement in his religious community, the Board was required to assess the documentary evidence regarding the effect of current conditions in Pakistan on Shias.
[15] The applicant argues that by basing its decision solely on negative credibility findings, the Board erred since it failed to determine whether the applicant's subjective fear of persecution in light of the documentary evidence could be ascertained.
[16] Furthermore, the applicant argues that the Board erred by failing to acknowledge or assess the effect of a medical report, submitted by the applicant, which he alleges corroborated testimony regarding treatment received following an attack by the SSP members.
[17] Regarding the Board's negative credibility findings, the applicant submits that it was unreasonable for the Board to conclude that the applicant will not be a target due to his age since it is the youth who continue and carry forward the traditions of the Shia faith. Thus, as an active and visible Shia youth, the applicant posed a greater threat to the SSP than the elderly members of the community.
[18] Finally, the applicant argues that it was unreasonable for the Board to draw a negative inference regarding credibility from the fact that his father was not directly targeted by the SSP since his father was not as active or visible in the Shia community in recent years.
[19] The respondent argues that there is no evidence to suggest that the Board refused to consider or ignore evidence. Specifically, he submits that the Board is presumed to have considered all the evidence before it in the absence of any clear and convincing proof to the contrary.
[20] Concerning the documentary evidence regarding the conditions of Shias in Pakistan, the Minister underlines that it does not illustrate any specific or personal risk to the applicant. Finally, failure to mention the medical report or the letter from the Mosque does not necessarily mean that it was not considered.
[21] Concluding, the respondent recalls that the standard of review for the Board's finding of facts is patent unreasonableness; that negative decisions concerning a person's credibility are properly made so long as the Board gives reasons for so doing in clear and unmistakable terms, which is the case in this proceeding; that the Board's conclusion that applicant's evidence is neither credible nor trustworthy is reasonable and does not warrant this Court's intervention.
[22] It is trite law that the appropriate standard of review relating to the Refugee Board's findings of credibility is that of patent unreasonableness.
[23] In the case at bar, I find that the Board's assessment of the applicant's credibility is borderline and that the Board erred by failing to ascertain whether the applicant's subjective fear of persecution was supported by the documentary evidence before it.
[24] In Seevaratnam v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 130 (F.C.T.D.), this Court endorsed the approach of the Federal Court of Appeal in Mahanandan et al. v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1128 (QL) (F.C.A.) where they wrote that when evidence which can affect the Board's assessment of the claim is presented at a hearing, the Board must indicate the impact it had on the claim.
[25] In this proceeding, the Board had before it evidence of the ongoing persecution of Shias in Pakistan which was submitted by both counsel and the Refugee Protection Officer. Although the Board is under no obligation to address all evidence relied on by counsel, it does not dispose of its obligation by simply discounting the evidence without explaining its reasons for doing so.
[26] While I agree that some aspects of the applicant's testimony may appear implausible, the Board failed to consider any of the documentary evidence: letter from the doctor as well as the letter from the Mosque in Pakistan; they simply denied the applicant's claim because it did not find him credible. These implausibilities distracted the Board from the substance of the facts on which the applicant based his claim. They did accept his identity, that he was a Shia and active in affairs of the Mosque.
[27] There is no doubt that the documentary evidence supports the allegations that Shias are being targeted; the letter submitted by the physician confirms his injuries; the letter from the Mosque, by way of corroborative evidence, supports his activity for the Mosque. Though they may have found that some aspects of his testimony was implausible, the documentary evidence and the corroborative letters are factual evidence that the Board should have considered and the Board should have gone beyond simply discounting it without any commentary. Having accepted his identity, the Board simply ignored the substantial evidence that a person such as this applicant might well be subjected to threats to his life if returned.
[28] The respondent's argument to the effect that since the documentary evidence consisted of broad reports of isolated incidents of violence in Pakistan without any specific reference to the applicant himself; that it does not have any probative value is irrelevant. As Justice O'Keefe stated in Kamalanathan v. Canada (Minister of Citizenship and Immigration)[2001] F.C.J. No. 826 :
25....the Board should have considered the independent documentary evidence before it [...] That evidence may have established a well-founded fear of persecution on the applicant's behalf or it may not have. The important point is that the panel should have assessed this evidence to determine whether or not it established a well-founded fear of persecution. In my opinion, the Board committed an error of law by failing to do so and its decision must be set aside.
[29] The documentary evidence which was not referred to by the Board specifically supports the applicant's allegations of threats and harassment. Quotations from a bulletin issued by the U.S. Department of States Human Rights Practices underline that "members of religious minorities are subject to violence and harassment and at times police refused to prevent such actions or charge persons who commit them... discriminatory religious legislation has added to an atmosphere of religious intolerance which has led to acts of violence against minority muslims sects".
[30] I am satisfied that the Board committed a reviewable error in failing to expressly consider and assess the documentary evidence as well as correspondence which independently support the applicant's distress.
[31] The application for judicial review is allowed and the matter is to be referred to a different panel for redetermination.
JUDGE
OTTAWA, Ontario
November 7, 2003
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET : IMM-5845-02
STYLE OF CAUSE : MASROOR (MASROORLE) ALI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 28, 2003
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: November 7, 2003
APPEARANCES:
Ms. Lani Gozlan FOR THE APPLICANT
Mr. Robert Bafaro FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lani Gozlan
Max Berger & Associates
1033 Bay Street
Toronto, Ontario
M5S 3A5 FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General
of Canada FOR THE RESPONDENT