Date: 20030923
Docket: IMM-2443-02
Citation: 2003 FC 1067
Between:
Kafil Ud Din SAIF
Halima Gul KAFIL
Fatima KAFIL
Haiqa KAFIL
Abdul Rahman KAFIL
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] The applicants seek judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Board") dated May 7, 2002, determining them not to be Convention refugees as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The principal applicant, his wife, and their three children are citizens of Pakistan. They claim a well-founded fear of persecution on the ground of political opinion. The principal applicant's wife and children are basing their claim on his.
[3] The applicants take issue with the Board's credibility finding. 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 (paragraph 18.1(4) of the Federal Court Act, R.S.C. 1985, c. F-7). 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.)). As the Federal Court of Appeal stated in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 at 244, 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 may amount to a finding that there is no credible evidence for that claim.
[4] In this case, the Board was very clear in its reasons for doubting the applicants' credibility, and it made no patently unreasonable error in reaching its decision.
[5] The applicants argue that the Board should have taken judicial notice of media statements made after the events of September 11, 2001 with respect to lax American immigration procedures, and should have considered such issues before rejecting their testimony. The applicants have not submitted any evidence to support their allegation that the visas issued in their names were, or could have been, used by third persons, or that the United States Immigration and Naturalization Services (the "US INS") has made such mistakes in the past. In any case, the Board is presumed to have taken into account all relevant evidence in reaching its decision (Taher v. Minister of Citizenship and Immigration (September 7, 2000), IMM-5255-99).
[6] The applicants take issue with the Board's reliance on the American documents, which they say show a name which is slightly different from that of the principal applicant. However, the documents in question, reproduced in the Certified Copy of the Tribunal Record at pages 263 and 265-268, show names which are identical to those of all members of the family, with the exception of one wrong letter used in the principal female applicant's name. The Board is entitled to prefer the documentary evidence, in this case the US INS document, over the applicants' testimony (Zhou v. Minister of Employment and Immigration (July 18, 1994), A-492-91 (F.C.A.)), where it gives clear reasons for so doing (Okyere-Akosah v. Minister of Employment and Immigration (May 6, 1992), A-92-91 (F.C.A.)). I am satisfied that the Board properly explained why it preferred the American document, and I cannot find that it erred in relying on an official report issued by the US government which directly addresses the applicants' claim.
[7] The applicants submit that, inasmuch as they used other people's identities to leave Pakistan, so too could the principal applicant's identity have been used by a third party at the same time. This constitutes pure speculation, which is insufficient to displace the evidence on which the Board based its decision.
[8] Furthermore, the applicants submit that they were in Canada and introduced their Personal Information Forms on October 16, 2001, therefore, they could not have been in a US airport to leave the country on November 3, 2001. As the respondent suggests, the fact that the Board received their applications in October 2001 does not establish that they were physically in Canada on that date, nor that they could not travel to the US with a valid American visa during that period. It was incumbent upon the applicants to establish their case.
[9] The applicants have failed to establish that the Board committed any reviewable error in its disposition of this case. The application for judicial review is, therefore, rejected.
JUDGE
OTTAWA, ONTARIO
September 23, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2443-02
STYLE OF CAUSE: Kafil Ud Din SAIF, Halima Gul KAFIL, Fatima KAFIL, Haiqa KAFIL, Abdul Rahman KAFIL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 13, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: September 23, 2003
APPEARANCES:
Mrs. Eleanor K. Comeau FOR THE APPLICANTS
Mrs. Christine Bernard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mrs. Eleanor K. Comeau FOR THE APPLICANTS
Montréal, Quebec
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario