Date: 20030218
Docket: IMM-760-02
Neutral Citation: 2003 FCT 179
Between:
ZAKRIA MOHAMMED KASHIF
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
Five minutes after the time set for the hearing of this matter, counsel for the applicant called the Registry of this Court to state that she did not feel well and that accordingly she was seeking an adjournment. As counsel for the respondent objected, I asked the Court Registrar to call counsel for the applicant at the number she had left with the Registry in order to seek and obtain an undertaking to file shortly a medical certificate establishing her incapacity to show up in Court. In spite of several attempts, the Court Registrar was unable to reach counsel for the applicant. Given the circumstances, I have accepted a request made by counsel for the respondent to dispose of this matter on the basis of the record, including the written representations made on behalf of the parties. These Reasons in support of the Order dismissing the application for judicial review are filed pursuant to section 51 of the Federal Court Act, R.S.C. 1985, c. F-7.
The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Board") dated January 28, 2002, determining him not to be a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
The applicant is a 26-year-old citizen of Pakistan. He is claiming a well-founded fear of persecution on the grounds of political opinion and membership in the Pakistan Muslim League, a political party.
The Board rejected the applicant's refugee claim because it found him not to be a credible witness. The Board supports its decision with the following reasons:
- the applicant's answer to question 37 of his Personal Information Form ("PIF") does not mention the existence of a First Information Report ("FIR") issued against him despite the fact that he introduced it as exhibit P-6 in support of his claim. The applicant's explanation that he did not mention it because he only knew about it when he was in Rawat is unsatisfactory;
- the applicant did not mention that his father was killed by the police in his PIF, and did not explain the omission;
- the applicant could not explain the inconsistency between his own testimony stating that his father died on July 8, and his father's death certificate, which states that he was admitted to hospital on July 9, 2000 at 7:15 a.m. and that he had been killed a few hours earlier. The death certificate was, therefore, not given any weight;
- the applicant did not provide a copy of the FIR which he and his uncle lodged concerning his father's murder. Because the FIR was very important to his claim, he should not and would not have forgotten to produce it prior to the hearing date if it actually existed; and
- the applicant testified that the ambulance brought his father's body home before going to the hospital. His explanation that he and his uncle did not know what else to do under the circumstances is illogical.
In questions of credibility, this Court cannot substitute its opinion for that of the Board unless the applicant can demonstrate that the Board's decision was based on an erroneous finding of fact that it made in a capricious manner or without regard for the material before it (subsection 18.1(4) of the Federal Court Act). It has been established that the Board is a specialized tribunal capable of assessing the plausibility and credibility of a testimony, to the extent that the inferences which it draws from it are not unreasonable (Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)) and its reasons are expressed clearly and comprehensibly (Hilo v. M.E.I. (1991), 130 N.R. 236 (F.C.A.)). Furthermore, as the Federal Court of Appeal stated in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, a tribunal's perception that a claimant is not credible with respect to a material element of his or her claim for refugee status effectively amounts to a finding that there is no credible evidence for that claim.
Upon reviewing the evidence, I was not satisfied that the Board could not reasonably conclude as it did. Although I disagree with the Board's finding that there is an inconsistency between the applicant's testimony and the date on his father's death certificate, this is not sufficient, given the other credibility findings made by the Board, to justify the intervention of the Court.
As for the applicant's submission that the Board had an obligation to acknowledge in its decision the various documents which he submitted in support of his claim, it is trite law that such a tribunal must be presumed to have considered all of the evidence that was presented to it, and it is not obliged to mention in its reasons all the evidence it has taken into account before rendering its decision (Taher v. Minister of Citizenship and Immigration (September 7, 2000), IMM-5255-99). In this case, the applicant has not cited any evidence which directly contradicts the Board's finding, therefore, there was no obligation on the Board to make express reference to it (Cepeda-Gutierrez et al. v. Minister of Citizenship and Immigration (October 6, 1998), IMM-596-98).
Finally, the applicant submits that before dismissing his claim, the Board had an obligation to at least verify the documents issued by official authorities in Pakistan through the ordering of an expertise. The only document whose veracity was called into question was the death certificate, to which the Board accorded no weight because of a perceived contradiction in the applicant's testimony. The Board is under no duty to obtain official verification of documents where there is sufficient evidence to cast doubt on their authenticity (Culinescu v. Canada (M.C.I.) (1997), 136 F.T.R. 241), and where, as here, there is insufficient evidence to call the authenticity of a document into question, it is not open to the Board to conclude that it is not genuine (Gyimah v. Minister of Citizenship and Immigration (November 10, 1995), IMM-1011-93). However, the Board's error in not assigning any weight to the death certificate, as discussed above, is not determinative in this matter.
As, upon review of the evidence, I was not convinced that the Board committed any reviewable error, the application for judicial review was dismissed.
As this matter involves essentially questions of facts and credibility, no questions ought to be certified.
JUDGE
OTTAWA, ONTARIO
February 18, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-760-02
STYLE OF CAUSE: ZAKRIA MOHAMMED KASHIF v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 5, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: February 18, 2003
APPEARANCES:
Not present FOR THE APPLICANT
Ms. Andrea Shahin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Styliani Markaki FOR THE APPLICANT
Montréal, Quebec
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario