Date: 20030318
Docket: IMM-1745-02
Neutral citation: 2003 FCT 319
BETWEEN:
RAFIQ AHMAD SAHI AND NASIM NAHID SAHI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the Applicants not to be Convention refugees within the meaning ascribed to that expression in subsection 2(1) of the Immigration Act[1]. The decision under review is dated the 8th of March, 2002.
THE APPLICANTS
[2] Rafiq Ahmad Sahi (the "Principal Applicant") and Nasim Nahid Sahi are husband and wife. They are citizens of Pakistan. The Principal Applicant, who was born in May of 1931, bases his claim to Convention refugee status on an alleged well-founded fear of persecution by reason of his religion, namely, Ahmadi. Mrs. Sahi's claim is based on that of her husband.
[3] The Principal Applicant relates a long history of discrimination, harassment, fear, and tension in his professional life until he retired in 1991. Following his retirement, the Principal Applicant became more active in the pursuit of his religious beliefs. Sometime in the mid-1990s, he apparently began to experience more intense harassment and fear which culminated with an attack on his home in December, 2000. With regard to the period of his retirement, the Principal Applicant wrote in the narrative portion of his Personal Information Form:
...
21. I retired from government service in 1991 and thereafter engaged myself in Ahmadiyyat community work. I was elected to be the secretary Islah-o-Irshad. My job was to look after the moral and religious aspects of the community members and to exhort them to preach to their fellow beings to become good and to practice true Islam.
22. This voluntary position brought me into the limelight and I became the bane of bigoted mullahs and ignorant urchins. They vilified and abused me and it became worse and worse.
23. Not content with verbal abuses they plotted to harm me physically. They used to place identification marks on my house. To confuse them I used to erase those marks, or saw to it that the several adjoining houses were identically marked. In desperation they pelted my house and through crackers so that I would be harmed on stepping out of the house.
24. The officer in charge of the police station in the area used to put me off on one excuse or the other. Moreover, how could police provide me with [protection] when it [the police] in itself was in league with the local mullahs?
25. The constant fear of death at the hands of ignorant zealots and constant vilification from the pulpit of the mosque finally compelled me and my wife to leave Pakistan.[2]
[4] Despite the violent events of December, 2000, the Applicants did not leave Pakistan until the 24th of March, 2001. Between December, 2000 and their departure from Pakistan, the Applicants apparently made no special effort to conceal themselves from their alleged persecutors. They remained in their own home.
[5] The Applicants travelled first to the United States where they sojourned for some six (6) days visiting with their daughter.
THE DECISION UNDER REVIEW
[6] The CRDD determined the Principal Applicant not to be credible. It found significant elements of his testimony to be implausible. It expressed strong reservations about a document, produced first only at the hearing and then without a translation, that he relied upon to demonstrate his significant involvement in Ahmadi religious work following his retirement.
[7] While the CRDD based its decision largely on credibility and implausibility findings, it did note and express concern about the Applicants' failure to claim refugee status in the United States before arriving in Canada and about their sojourn in Pakistan following the events that triggered their decision to leave and seek refuge outside of Pakistan.
THE ISSUES
[8] While counsel for the Applicants, in his Memorandum of Law and Argument, raised issues of fairness, those issues were not, I am satisfied, pursued with any great vigour at the hearing before me. By contrast, counsel for the Applicants went on at some length and with extensive reference to the transcript, the Principal Applicant's Personal Information Form narrative and the documentary evidence to urge that the CRDD's credibility and implausibility findings simply were not open to it, ignored evidence, misconstrued evidence and were not based on the totality of the evidence that was before the CRDD.
[9] By contrast, counsel for the Respondent urged that the CRDD's credibility and implausibility findings were entitled to great deference and that, in each case, those findings were reasonably grounded in the Principal Applicant's testimony, in his Personal Information Form narrative and in the documentary evidence that was before the CRDD.
ANALYSIS
[10] In Giron v. Minister of Employment and Immigration[3], Justice MacGuigan wrote at paragraph [1]:
The Convention Refugee Determination Division of the Immigration and Refugee Board ... chose to base its finding of lack of credibility here for the most part, not on internal contradictions, inconsistencies and evasions, which is the heartland of the discretion of triers of fact, but rather on the implausibility of the claimant's account. In the light of extrinsic criteria such as rationality, common sense, and judicial knowledge, all of which involve the drawing of inferences, which triers of fact are in little, if any, better position then others to draw.
[11] The foregoing passage was commented on by Justice Décary on Aguebor v. Ministre de l'Emploi et de l'Immigration[4] when he wrote at paragraph [4]:
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.
[12] Having had the benefit of exhaustive argument by counsel on behalf of the Applicants and the Respondent with extensive reference to the record that was before the CRDD and to the transcript of the hearing before the CRDD, albeit that the transcript was rather badly flawed, I reach the same conclusion as did Justice Décary. The burden lay with the Applicants of showing that the inferences drawn by the CRDD, and more broadly, that both the credibility and implausibility findings of the CRDD, could not reasonably have been arrived at. The Applicants, despite the efforts of their counsel, have simply not discharged that burden. Put another way, I am satisfied that the findings of the CRDD as to credibility and implausibilities were reasonably grounded on the totality of the evidence that was before it.
[13] I am satisfied that my finding to this point is dispositive of this application for judicial review. The concerns expressed by the CRDD regarding the Applicant's delay in leaving Pakistan and their sojourn in the United States before coming to Canada to claim Convention refugee status were not central to their decision.
[14] Finally, I am not satisfied that the Applicants have demonstrated any breach of the duty of fairness owed to them on the part of the CRDD, either in the conduct of the hearing or in the treatment of the evidence filed post-hearing.
CONCLUSION
[15] In the result, this application for judicial review will be dismissed. Neither counsel recommended certification of a question. I am satisfied that no serious question of general importance arises out of this matter. No question will be certified.
_____________________________
J. F.C.C.
Ottawa, Ontario
March 18, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1745-02
STYLE OF CAUSE: RAFIQ AHMAD SAHI, NASIM NAHID SAHI v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 4, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE GIBSON
APPEARANCES:
Mr. Harvey Savage FOR APPLICANTS
Ms. Patricia MacPhee FOR RESPONDENT
SOLICITORS OF RECORD:
Harvey Savage
Barrister and Solicitor FOR APPLICANTS
Toronto, Ontario
Tel: (416) 585-2088
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
Per Patricia MacPhee
Department of Justice
Toronto, Ontario
Tel: (416) 954-6331
[1] R.S.C. 1985, c. I-2.
[2] Tribunal Record, pages 68 and 69.
[3] (1992), 143 N.R. 238 (F.C.A.).
[4] (1993), 160 N.R. 315 (F.C.A.).