Date: 20041008
Docket: IMM-7806-03
Citation: 2004 FC 1389
OTTAWA, ONTARIO, THIS 8TH DAY OF OCTOBER, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
AGHA JUNAID KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Mr. Khan, a Shia Muslim citizen of Pakistan, came to Canada in September 2002 and claimed Convention refugee status based on his religion. Because of his alleged activities within his Shia community, including his position as general secretary of a Shia welfare organization, he claims to have been targeted by anti-Shia Sunni organizations such as the Sipah-e-Sahaba Pakistan ("SSP") and the Lashkar-e-Jhangvi ("LJ"). In a decision dated August 5, 2003, a panel of the Immigration and Refugee Board, Refugee Protection Division (the "Board") determined that the Applicant was not a Convention refugee or a person in need of protection. The Applicant seeks judicial review of that decision.
Issues
[2] The issue in this case is whether the Board's finding that the Applicant's claim of being the general secretary of his Shia welfare society lacked credibility was patently unreasonable or made without regard to the evidence.
[3] This issue is critical to the decision of the Board. The Board found that "at most the claimant was a low level worker in his Shia community" and that, therefore, his "profile does not match what [the documentary evidence] suggests as those Shia most likely to be targeted". The Board then went on to analyze the availability of state protection for "low level workers". If the Board wrongly characterized the Applicant's profile, it follows that the Board did not consider the issue of state protection for a person of this different profile.
Analysis
[4] The standard of review in a case involving credibility findings is patent unreasonableness. Unless the conclusions of the Board are entirely unsupported by the evidence before it, the Court should not intervene.
[5] The Board's finding of lack of credibility rested on the failure of the Applicant to identify, either at the Port of Entry ("POE") or in his original Personal Information Form ("PIF"), (a) that he was secretary general of his Shia welfare society or (b) that he provided charitable assistance to non-Shia. After questioning him on those omissions, the Board was evidently not satisfied with his responses. The Board is entitled to draw negative inferences from the failure of a claimant to mention important or central aspects of their claim. However, the question remains whether, in making its finding, the Board ignored critical corroborative evidence and, if so, on the facts of this case, whether the failure to refer to corroborating evidence is fatal.
[6] In this case, on the issue of the Applicant's role in the community, the Applicant submitted a letter from the 2003 general secretary of the organization stating that the Applicant was appointed general secretary in 1995 and that, when members of the SSP and LJ came to know about this, they beat him. The Applicant submits that the Board erred by failing to refer to this corroborating evidence in its decision as it directly contradicts the Board's conclusion.
[7] While it would have been preferable for the Board to refer to this letter, I do not believe that the Board erred in failing to do so in these particular circumstances. As stated by Justice Evans in Ozdemir v. Canada (Minister of Citizenship and Immigration), [2001] 282 N.R. 394, "a decision-maker is not bound to explain why it did not accept every item of evidence before it. Much depends on the significance of that evidence when it is considered in light of the other material on which the decision was based" [emphasis added]. In my view, I must examine the record as a whole to determine whether, in this case, the Board erred by failing to refer to the letter.
[8] The Respondent asks that I consider the final submissions of counsel for the Applicant made to the Board. During final submissions to the Board, counsel for the Applicant addressed the issue of the omission of his position as general secretary from the POE notes and PIF. The counsel admitted the importance of the inclusion of this information in the PIF or at the POE when he stated:
If it's the sort of thing you would necessarily expect to find in a PIF, or at the port of entry, and if you don't find it, it impugns the credibility of every other aspect of, material aspect of the claim.
. . .
He also indicates, having said that the reason they targeted me was because I was the general secretary of this organization, then obviously you, you would have to find the omission of that particular organization and his position therein as fatal to this claim.
. . .
I would ask you to weigh heavily the fact that his position was that it was his involvement in these activities that led to him being targeted, and not necessarily his nominal position.
[9] Reading these statements of counsel and the balance of the argument, it appears to me that the focus of the submission was not on the Applicant's position with the organization but his activities. I would not go so far as to conclude, as urged by the Respondent, that the counsel had "conceded" that, if the Board did not accept the Applicant's explanation for having omitted the facts from his PIF, it would be fatal to the claim. However, by these statements, counsel directed the attention of the Board to those parts of the testimony that were most important. The Applicant's counsel made no specific reference to the letter upon which the Applicant now bases the alleged error. If the letter was as important as the Applicant now claims, why was it not highlighted for the Board?
[10] Thus, when I assess the significance of that particular letter in light of the other material on which the decision was based, including the submissions of counsel for the Applicant at the hearing, I conclude that the Board did not err by failing to refer to it. The Board's conclusion that the Applicant did not have a profile that would make him a target was reasonably open to it on the record before it.
[11] Once the Board concluded that the Applicant was at most a low level worker in his Shia community, the Board turned to an analysis of the availability of state protection. Its conclusion was that the current government will provide adequate state protection should the Applicant return to Pakistan. While expressing concern with the Board's analysis and its application of the test in Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), the Applicant has not persuaded me that the decision on the availability of state protection was patently unreasonable.
[12] For these reasons, the application will fail. Neither party proposed a serious question for certification. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application is dismissed; and,
2. No question of general importance is certified.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7806-03
STYLE OF CAUSE: AGHA JUNAID KHAN v. THE M.C. & I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 6, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: October 8, 2004
APPEARANCES BY:
John Savaglio FOR APPLICANT
Kevin Lunney FOR RESPONDENT
SOLICITORS OF RECORD:
John Savaglio FOR APPLICANT
Pickering, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Attorney General of Canada