Date: 20030320
Docket: IMM-1332-02
Neutral citation: 2003 FCT 329
Montreal, Quebec, this 20th day of March, 2003
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
BABAR WAHEED
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Babar Waheed (the "applicant") seeks judicial review of a decision rendered by the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board").
[2] The main issues before me are whether the Board made findings of fact that were sufficiently erroneous to warrant judicial review, or if an error in law was made.
[3] This application is dismissed for the reasons given below.
BACKGROUND FACTS
[4] The applicant is a forty-three-year-old citizen of Pakistan. In his Personal Information Form ("PIF"), and in his testimony before the Board, he alleged that he was active in the political party known as the Pakistan People's Party ("PPP") in his hometown, Lahore. A chief rival of the PPP was the Pakistani Muslim League ("PML").
[5] The applicant claimed that following the 1990 elections for the National Assembly ("NA") and Provincial Assembly ("PA") in Lahore, which were won by PPP candidates, PML members came onto the streets and fired guns into the air. Some of these members abused the applicant.
[6] In December 1990, the applicant was allegedly visited by a police officer at his place of employment, a woodworking shop. He went to a police station at the request of the officer and was informed that complaints had been launched against him for criticizing the PML. He was invited to join the PML and was promised that he would be rewarded if he did so, or punished if he declined.
[7] In 1993, while riding a motorcycle, the applicant was hit from behind by the driver of a Jeep. That driver fled the scene, and the applicant underwent sixteen operations over the following three years. He later suspected that the collision was not an accident, but a deliberate attempt to kill him.
[8] In 1998, following the conviction of former President Benazir Bhutto and her husband, police raided the homes of PPP members, including the applicant, who was not home at the time. Other similar alleged events of police aggression took place between the accession to power of General Parvez Musharraf via military coup in 1999 and the applicant's departure from Pakistan in 2000. In 2001, while the applicant was in Canada, he learned that a warrant had been issued for his arrest in July 2000. A copy of that warrant appears at page 94 of the Applicant's Record.
DECISION OF THE BOARD
[9] A one-member panel heard the claim. Mr. Stéphane Hébert was the member who presided over the hearing. His decision indicates that the applicant consented to have his claim heard by a single-member panel, and the transcript of the hearing confirms this.
[10] The Board found that the applicant was not a Convention refugee. After outlining the facts alleged by the applicant, the Board stated its conclusion that the narrative of the applicant was not credible.
[11] The Board noted that the applicant was unable, during his testimony, to identify correctly the candidates in particular elections or answer questions related to constituencies, winning parties in particular elections, or other political events. Some of his answers were contrary to those indicated by the documentary evidence regarding politics in Pakistan during the relevant period. The Board was troubled by the quality of the applicant's answers, particularly given that the central basis of his refugee claim was his activity as a political party worker.
[12] The Board also found the applicant's knowledge of the arrest warrant undermined his credibility. The warrant was issued in July 2000 but the applicant only became aware of it in February 2001, after he had arrived in Canada. It is not plausible that neither the claimant, nor his lawyer in Pakistan, nor any member of his family knew of the existence of a public document such as this before he left the country in September 2000. Someone claiming refugee protection on the basis of a situation of persecution which forced him to leave his home country would be expected to be aware of such a matter, said the Board in its reasons.
[13] The Board also did not believe that the 1993 motorcycle collision was a deliberate attempt to kill the applicant for political motives. The lack of warnings or threats following the accident, and the absence of any allusion to the accident by the PML until 1999 led the Board to conclude that the incident was "nothing more than an accident" (Reasons, page 5). The Board came to a conclusion, based on a cumulative analysis of the factors mentioned above, that the applicant failed to establish, on a balance of probabilities, that he had a well-founded fear of persecution.
ISSUES
[14] The issues are as follows:
a) Did the Board render a patently unreasonable decision in its evaluation of the credibility and plausibility of the testimony?
b) Did the Board commit a reviewable error in its assessment of the documentary evidence of the situation in Pakistan?
c) Has the Board rendered a decision which would violate the Canadian Charter of Rights and Freedoms (the "Charter")?
SUBMISSIONS
Applicant
Assessment of Testimony
[15] Contrary to the finding of the Board, the applicant gave the names of three out of nine candidates for the last three elections in his area. The conclusions given in the reasons misrepresent what was said at the hearings. This error is central to the decision and is, on its own, a sufficient ground on which this decision should be overturned. He cites Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.).
[16] The Board erred in setting aside very strong evidence such as a letter from the PPP District President, medical letters and a letter from his lawyer. The refusal to give weight to these elements was based on an erroneous finding of credibility with regard to the testimony of the applicant and is therefore itself in error.
[17] The credibility of the testimony of the applicant was rejected without a solid basis. The refusal to give weight to the arrest warrant is another incidence of a Board going out of its way to find reasons to disbelieve the applicant. The justification of the Board for not believing that the 1993 accident was a deliberate attempt to kill the applicant is speculative at best.
[18] The Board did not provide adequate justification for rejecting documentary evidence which supports the claims of the applicant. This Court held in Bains v. Canada (Minister of Employment and Immigration) (1993), 20 Imm. L.R. 296 (2d) (F.C.T.D.), that the Board has an obligation to comment on the information and why it rejected it, especially if it supports the applicant's position.
[19] This Court has stated in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.), that sworn testimony is presumed to be true unless there is reason to doubt its truthfulness. It was not proper for the Board to deviate from this presumption. In the absence of evidence contrary to what has been said in testimony, it is not open to the Board to draw negative inferences and disbelieve that testimony. The Federal Court of Appeal made such a ruling in Ansong v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 94 (F.C.A.). Ansong, supra, was the basis for the ruling of the Trial Division of this Court in Ahortor v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 39 (F.C.T.D.).
[20] There is solid evidence from a variety of independent sources which supports the claim of the applicant that, as a PPP worker, he is in serious danger in Pakistan. The reasons of the Board for its wholesale rejection of all this evidence are largely speculative and are not supported by the material that was before it.
Documentary Evidence
[21] The current government in Pakistan is a de facto military regime whose judiciary, executive offices and other institutions are stacked with those loyal to the regime. Documentary evidence, including the binder on Pakistan kept by the Board, shows the current problems caused by the regime, including suppression of democracy and impunity for political crimes. Reports by Human Rights Watch support the other documentary evidence in the file. There is no basis to support the opinion of the Board that PPP activists such as the applicant no longer face harassment and persecution.
The Charter
[22] The decision of the Board and the removal that will follow the decision violate sections 7 and 12 of the Charter as well as Article 3 of the United Nations Convention Against Torture and other forms of Inhuman or Degrading Treatment of Punishment ("Convention Against Torture" or "CAT").
[23] Article 24 of the Charter dictates that there must be a recourse for Charter violations. In addition, Charter rights, and the pressing and substantial objectives which could justify violations of the Charter, must be interpreted in accordance with Canada's international obligations: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.
[24] The applicant concluded his submissions with some observations on the standard of review. He submitted that the applicable standard of review is one of correctness when it comes to questions of law. The rejection by the Board of the documentary evidence which directly supports the applicant's fear of persecution was an error in law and justifies the quashing of this decision. He also cited the decision of this Court in Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.), in support of his submission that the Court should quash this decision on the basis that it is an example of a Board seeking zealously to find contradictions in the testimony of the applicant, a practice which this Court has condemned.
Respondent
[25] In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.) (QL), the Federal Court of Appeal stated at paragraphs 2 to 4:
In his memorandum, counsel for the appellant relied on the decision of this Court in Giron v. Minister of Employment and Immigration [(1992), 143 N.R. 238 (F.C.A.).] in support of his argument that a court which hears an application for judicial review may more easily intervene where there is a finding of implausibility. Because counsel are using Giron with increasing frequency, it appeared to us to be useful to put it in its proper perspective.
It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. [emphasis added]
Therefore, Giron has been put in its proper perspective.
Assessment of Testimony
[26] The applicant's submissions are of a general nature and do not indicate why the decision of the Board should be seen as erroneous or capricious. His description of current conditions in Pakistan is not adequately linked to the merits of the Board's conclusions. His submissions therefore do not demonstrate that the conclusions of the Board are ill-founded.
[27] Contrary to the applicant's submissions, the Board did have a basis on which to reject the supporting evidence of the applicant due to the lack of credibility in his testimony. A general finding of a lack of credibility can extend to an applicant's testimony as a whole, and documentary evidence cannot be deemed to apply to a claim that is not credible: Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.); see also Tsafack v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 506 (T.D.) (QL).
[28] The comments of the Board regarding the inability of the applicant to provide answers to fundamental questions regarding political players and events in Pakistan are well supported. The Board is entitled to consider the applicant's lack of knowledge of matters of which he would be well aware if he were as actively involved in the PPP as he had claimed to be: Rokni v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 182 (T.D.) (QL).
[29] The applicant cited Afzal v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 708 (T.D.), in support of his submission that the conclusions of the Board regarding the arrest warrant issued in Pakistan were unfounded. This decision has no application to the case at bar. The conclusion of the Board is based on the fact that the applicant claimed to have learned of the existence of the warrant only after arriving in Canada, despite the fact that the police had come to his house seeking to arrest him in July 2000.
[30] In the present case, it is not the failure to obtain a copy of the arrest warrant earlier, but rather the lack of credibility of the applicant with respect of the warrant, which is behind the conclusion of the Board. The Board clearly explained why it rejected the applicant's testimony on credibility grounds, and why it gave no probative value to his documents.
[31] In its supplementary submissions, filed with leave, the respondent submits that it was unnecessary for the Board to refer to the medical evidence related to the 1993 accident. It was not disputed that the accident occurred; the Board took issue with the credibility of the claim of the applicant that the collision was a deliberate action taken with political motivation. The applicant testified that the PML only stated a link between that event and its motives in 1999, six years after the fact. It was therefore not unreasonable for the Board to reject the applicant's version of events related to the accident for lack of credibility.
Documentary Evidence
[32] The Board was entitled to reject the documentation submitted by the applicant, or to give it no probative value. The Board supported its decision not to give probative value to this evidence by stating and explaining its conclusion that the applicant's claim was not credible. It is not an error on the part of the Board not to explain why it did not give probative value to documents which purport to substantiate allegations found not to be credible. This Court has supported such an approach on the part of the Board in three cases: Hamid v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 1293 (T.D.) (QL); Songue v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1020 (T.D.) (QL); and Syed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 597 (T.D.) (QL).
[33] Furthermore, the documents that were submitted by the applicant were self-serving and contradictory. They do not serve as corroboration by independent proof; rather, they rely on the claim of the applicant, which was found not to be credible.
[34] In the context of the Board's decision that the applicant's attempt to link the 1993 accident with his PPP involvement, including PML threats, was not credible, it was open to the Board to reject a letter dated February 16, 2001, which attributes the accident to a plot against the applicant. Such a conclusion was neither unreasonable nor capricious.
[35] With respect to the arrest warrant, the respondent laid out a chronological account of relevant events, including the reference made on the warrant to August 28, 2002, the date by which the warrant was to be executed in order to have the applicant appear before a judge in Lahore on that date. Given this time line, it is unreasonable that the applicant would not have learned of the existence of this document until seven months after its release. It was therefore open to the Board to conclude that the applicant lacked credibility in this regard. This rendered non-credible the testimony of the applicant with respect to the circumstances that gave rise to the warrant.
[36] In its Supplementary Record, the respondent enclosed evidence of the constituencies in Pakistan and the results of recent elections. This evidence supports the claim of the Respondent that the Board's conclusions with respect to the credibility of the applicant were well-founded. The Board was entitled to consider the failure of the applicant to answer questions related to politics in Pakistan as an adverse factor affecting the credibility of his claim. Such a finding is consistent with common sense and rationality, qualities which the Court in Bains, supra, justified a credibility finding by the Board.
[37] With respect to standards of review, the standard that is to be applied to a review of the assessment of evidence is the patent unreasonableness standard. Several cases are cited in support of this submission.
The Charter
[38] This Court has found on numerous occasions that the jurisdiction of the Board is limited to the determination of the claim for refugee status. Questions regarding removal of the applicant are premature, as the Board has no jurisdiction in that matter. Also, in Sandhu v. Canada (Minister of Citizenship and Immigration) (2000), 258 N.R. 100 (F.C.A.), this Court confirmed that the application of the CAT is a matter to be considered in determining whether a failed refugee claimant should be returned to his country. It is not a matter to be factored into a claim for refugee status.
ANALYSIS
Assessment of Testimony
[39] Sworn testimony is presumed to be true in the absence of reasons to doubt the truthfulness of that testimony: Maldonado, supra. In the case at bar, the Board cited several examples of answers by the applicant which led it to doubt the veracity of the testimony of the applicant. The incorrect answers given by the applicant in response to certain questions about political matters in Pakistan particularly caught the attention of the Board, given that the involvement of the applicant in political activities was a major factor he cited for his fear of persecution.
[40] A Board ought not to take extreme measures to seek inconsistencies, however small, and use those as a basis for giving limited probative value, or none at all, to the evidence of an applicant. The Federal Court of Appeal stated this rule in Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.). However, the inconsistencies between the testimony of the applicant and other evidence before the Board were not of the banal nature that characterized the evidence on which the decision in question in Attakora, supra was based. The matters on which the Board in the present case based its decision were sufficiently material to support that decision. The obligation which Bains, as cited by the applicant, imposes on tribunals such as the Board, was met here. Adequate reasons were given for the rejection of certain evidence.
Documentary Evidence
[41] The Board is entitled to consider the evidence, testimonial and documentary, as a whole in order to determine its credibility: Mostajelin v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 28 (F.C.A.) (QL). As discussed above, the Board was within its rights to make the determination that it did with respect to the credibility of the applicant. Having done that, the Board was entitled to determine the probative value that would or would not be given to documents offered in support of the testimony of the applicant.
[42] The respondent submits that it is not an error for the Board to explain why it gave no weight to documents offered in an attempt to substantiate allegations found not to be credible. That submission is valid but not necessary. The Board determined, at page 5 of its reasons, that it was rejecting such evidence as the letter issued to the applicant by the PPP in 2001 because the claims which the applicant sought to substantiate with that letter were found not to be credible. The Board did not believe that the 1993 collision was related to efforts by the PML to harass or threaten the applicant. It therefore stated the following:
[...] The claimant's sole supporting evidence of his thesis of the 1993 plot against his person consist (sic) of a PPP letter dated February 16, 2001 and obviously issued upon the claimant's (applicant's) request. This self-serving evidence can not (sic) be given much probative value considering that the claimant's allegations are not credible nor (sic) plausible.
Prior to this portion of the reasons, the Board explained its reasons for finding that the allegations of the applicant was not credible or plausible. It was therefore entitled to reject the documentation in support of those allegations.
[43] The applicant has submitted that the documentary evidence on Pakistan generally shows that it is a military regime rife with political conflict. However, it is not sufficient to refer to general conditions in a country. A link must be made between those conditions and a specific likelihood of harm to the applicant if he were to return to that country. The Board made a valid finding that such a link was not made in the present case.
The Charter
[44] The decision of the Board will likely have serious consequences for the applicant, including his removal from Canada. That said, the determination of Convention refugee status is a very limited question. Other proceedings may be commenced by the applicant or the respondent, such as proceedings to determine whether the applicant should be returned to his country of origin. In such cases, the Charter and the CAT may apply: Sandhu, supra. However, at this time, an attempt to invoke the Charter or the CAT is premature. These do not, therefore, have any bearing on the present case.
[45] Therefore this application for judicial review will be dismissed.
[46] Counsel did not suggest a serious question of general importance. No question is certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No serious question of general importance is certified.
____________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1332-02
STYLE OF CAUSE: BABAR WAHEED v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: March 12, 2003
REASONS FOR ORDER
AND ORDER BY : THE HONOURABLE MR. JUSTICE BEAUDRY
APPEARANCES:
Me Stewart ISTVANFFY FOR THE APPLICANT
Me Michel SYNNOTT FOR THE RESPONDENT
SOLICITORS OF RECORD:
Me Stewart ISTVANFFY FOR THE APPLICANT
503-1070, Bleury Street
Montréal (QC) H2Z 1N3
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal (QC) H2Z 1X4