Date: 20030225
Docket: IMM-2029-02
Neutral Citation: 2003 FCT 242
BETWEEN:
SAIRA ALI
TEHREEM ALI
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
RUSSELL J.
Relief Sought
[1] This is an application for judicial review under the Federal Court Act, R.S.C. 1985, c. F-7 ("Act") of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board"), dated April 4, 2002, wherein the Applicants were determined not to be Convention refugees.
[2] The Principal Applicant alleges a well-founded fear of persecution on the grounds of religion, in that she is a Shia Muslim by birth. She claims that her agents of persecution are members of the Sipah-e-Sahaba Pakistan ("SSP").
Applicants' Account
[3] The Applicants are a mother and daughter and are citizens of Pakistan.
[4] The Principal Applicant alleges that state protection is not available to them.
[5] The Principal Applicant testified that she and her husband were Shia Muslims by birth. Her husband became the financial secretary of their local Imam Bargah in December 1999.
[6] In February 2000, her husband was assaulted by members of the SSP. He was injured and required a five day stay in the hospital. They notified the police but to no avail.
[7] In April 2000, the Principal Applicant was beaten when coming home from an event in the Iman Bargah. She explained that she was slapped in the face and insulted. They again notified the police without any success.
[8] In July 2000, a majlis in the Principal Applicant's home was interrupted by members of the SSP, who beat her visitors and looted and vandalized her home. Police arrived and arrested some of the culprits, who were then released upon payment of a bribe.
[9] In October 2000, the Principal Applicant's home was attacked by members of the SSP, who beat the Principal Applicant and her husband. He required hospitalization. The house was looted again and destroyed. They informed the police. No arrests however, took place.
[10] In December 2000, her husband's store was looted and destroyed by the SSP. The Principal Applicant stated that she had received telephone warnings previously from the SSP. They informed the police but no arrests were forthcoming.
[11] In January 2001, her husband was arrested by the police. The Principal Applicant declared that the police arrested Shia Muslims for the sake of obtaining bribes. She stated that he was beaten and humiliated and threatened to pay a bribe. He was released after four days upon the payment of 40,000 rupees.
[12] Fearing for their lives, the Principal Applicant's husband hired a smuggler who smuggled the Principal Applicant and her daughter into Canada. The Principal Applicant testified that the smuggler could not make arrangements for her husband, and that he is still waiting in Saudi Arabia for an opportunity to come to Canada.
Decision of the Board
[13] The Board held that the Principal Applicant was not a credible witness and that her accounts of past instances of persecution were unpersuasive. The Board also found that her allegations of inadequate state protection were not supported by the documentation.
[14] With regard to the Principal Applicant's allegation that state protection was unavailable, the Board noted that, while sectarian violence existed in Pakistan, the government had been making a serious effort to curb such violence. According to the documentary evidence, the militant Sunni organizations which the Principal Applicant feared were treated as criminals by the authorities, and the state was making a serious effort to curb those organizations and their violence. As early as February 2001, there had been an increase of arrests of members of the SSP and in August 2001, the government banned both the Sipa-e-Mohammed and the Lashkar-e-Jhangvi. Furthermore, increased action had been taken by the state to curb sectarian violence since the events of September 11, 2001. As a result of these findings, the Board held that adequate state protection existed for the Applicants in Pakistan.
Applicants' Submissions and Grounds
[15] The Applicants allege that in making its decision, the Board:
1. erred in law in drawing a negative inference without regard to the totality of the evidence and in misconstruing the evidence before it;
2. erred by failing to provide any weight to the supporting documents adduced at the hearing; and
3. made a capricious finding of fact unsupported by evidence that the Applicants do not have a perspective danger of persecution in Pakistan.
Respondent's Position
[16] The Respondent argues that the Board did not make findings that were perverse in nature and that its conclusions were all substantiated by the evidence before it.
Discussion
[17] The Board both doubted the Principal Applicant's credibility in relation to past instances of persecution and felt that her testimony did not accord with the probabilities of the case as a whole.
[18] In its decision the Board quoted and relied upon documentary evidence compiled by a colleague in a previous hearing that involved a simular claim. Such documentary evidence suggested that the state in Pakistan was taking strenuous and effective measures to curb and control the kind of sectarian violence feared by the Principal Applicant.
[19] The Board assessed the Principal Applicant fears against this documentary background and concluded that the Principal Applicant had not adduced "sufficient credible and trustworthy evidence upon which to base a determination that [the Applicants] are Convention refugees."
[20] Several aspects of the Board's decision are questioned by the Applicants:
Credibility
The Principal Applicant argues that the Board erred in stating that there was no evidence corroborating her allegation that police in Guranwala had arrested Shias to make money in a religiously motivated campaign. She refers to the United States Department of State Report on Human Rights Practices in Pakistan which indicates that police corruption is widespread, and that false charges are laid for the purposes of extortion. Furthermore, due to the atmosphere of religious intolerance directed at minority Muslim sects such as Shias, she argues that it is plausible that the police would specifically target Shias for extortion, as they constitute a vulnerable element of society. The Principal Applicant submits that the Board did not consider the evidence as a whole and this constitutes an error in law.
The Principal Applicant also submits that the Board erred in drawing a negative inference regarding credibility from her inability to provide proof of her husband's whereabouts. She points out that she provided the Board with her husband's address and phone number in Saudi Arabia. She explained that she had used pre-paid calling cards to contact him, and therefore did not have a record of the telephone calls. She indicated that was she also unable to obtain an affidavit from the person with whom her husband was residing, as it is illegal for such persons to harbour illegal immigrants in Saudi Arabia. The Principal Applicant submits that the Board ignored her reasonable explanation and that this constitutes an error of law.
Supporting Documents
The Principal Applicant submits that the Board erred in choosing to not give any weight to her supporting documents. The Board held that fraudulent documentation is easily obtainable in Pakistan, and that the documents could have been created to corroborate false statements. The Principal Applicant argues that the Board does not have any specialized knowledge in forensic science, and that it should have referred the documents to the RCMP or to the issuing organizations in Pakistan for verification. As there is no reliable evidence that her documents were fraudulent, the Principal Applicant submits that the Board's conclusion was perverse.
Risk of Persecution
The Principal Applicant submits that the Board erred in concluding that she did not have a prospective danger of persecution in Pakistan. She points to the United States Department of State Report on Human Rights Practices for Pakistan, released February 2001, which indicates that persecution of religious minorities such as Shias is a serious problem.
The Principal Applicant also submits that the Board erred in relying on statements by President General Musharaff announcing attempts to curb sectarian violence. She points out that the President's address took place on January 12, 2002, merely a month prior to the date of the hearing, and that it was premature to conclude that the attempts announced by the president were effective in curbing violence against Shias. In fact, her documentary evidence indicates that violence against Shias continues even after the address to the nation.
The Principal Applicant submits that even if the Board found that she was not credible, it still had to consider the question of whether she had a well-founded fear of persecution as a result of her membership in a particular religious and social group. As such, according to the Principal Applicant, the Board erred in law by ignoring evidence relating to the persecution of Shias and by basing its conclusions on premature assumptions that there were changes in country conditions.
[21] Certain aspects of the Board's decision in relation to the lack of corroborated documentation from the Applicants when there is no inherent consistency in the Principal Applicant's testimony is of concern, and there is a significant body of case law emanating from this Court which states that, in the absence of evidence to contradict an applicant's testimony, the Board should not require corroborating documentation.
[22] However, the focus of the Board's decision is the implausibility of the Principal Applicant's account of past religious persecution, especially when looked at in the light of documentary evidence concerning adequate state protection. In this regard the Board is entitled to weigh what the Principal Applicant says against the documentary evidence available to it, and to find the Principal Applicant's account wanting. And this is what the Board did.
[23] The Board doubted the Principal Applicant's testimony because it did not "accord with the probabilities as a whole" and, in particular, because the Board disagreed with the Principal Applicant concerning the availability and effectiveness of state protection, as evidence in the documentation before it. Hence, it is crucial to ensure that the Board correctly addressed all of the documentary evidence before it that was germane to its decision.
[24] In this regard, counsel for the Applicants refers to various documents before the Board and alleges that the Board "erred by misconstruing the documentary evidence relating to country conditions before it."
[25] This allegation, however, merely amounts to saying that the Board placed greater store on some of the documentary evidence before it. There is nothing to suggest that the Board "ignored the evidence demonstrating the persecution suffered by Shias in Pakistan," and other "relevant evidence on the record," as alleged by counsel for the Applicants. On the contrary, the Board specifically says in its decision that "I do not want to diminish the problems of sectarian violence in Pakistan ..."
[26] As counsel for the Respondent pointed out, the Board is not obliged to refer to all of the evidence and is entitled to prefer certain documentary evidence over other evidence before it. Also, as the Federal Court of Appeal noted in Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946, "the fact that some of the documentary evidence is not mentioned in the Board's reasons is not fatal to its decision."
[27] In Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 the Federal Court of Appeal has held that a presumption exists to the effect that all documentary evidence is taken into consideration:
[28] Looked at in its entirety, the Board's decision weighs the evidence available to it and finds the Principal Applicant's account unconvincing. This was certainly a conclusion the Board was entitle to come to and in so doing it did not commit a reviewable error.
[29] Accordingly, the application for judicial review is dismissed.
[30] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these reasons. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an order will be issued.
"James Russell"
J.F.C.C.
Ottawa, Ontario
February 25, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2029-02
STYLE OF CAUSE:SAIRA ALI ET AL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, FEBRUARY 18, 2003
REASONS FOR ORDER
BY: RUSSELL J.
APPEARANCES BY: Ms. Lani Gozlan
For the Applicants
Ms. Patricia MacPhee
For the Respondent
SOLICITORS OF RECORD: Ms. Lani Gozlan
Barrister and Solicitor
Max Berger and Associates
1033 Bay Street,
Suite 207
Toronto, Ontario
M5S 3A5
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030225
Docket: IMM-2029-02
BETWEEN:
SAIRA ALI ET AL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER