Date: 20061229
Docket: IMM-999-06
Citation: 2006 FC 1557
Ottawa, Ontario, December 29, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
MUHAMMAD NADEEM AKHTAR MUGHAL,
SAIMA NADEEM, MAHEEN
NADEEM, and MUHAMMAD RAFAY NADEEM
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
Background
[1]
On
January 12, 2006, a member of the Refugee Protection Division of the
Immigration and Refugee Board of Canada (the Tribunal) dismissed the sections
96 and 97 of the Immigration and Refugee Protection Act (the Act)
claims of Mr. Mughal (hereinafter Nadeem), his wife Saima (hereinafter Saima)
and their children Maheen (hereinafter Maheen) and Muhammad Rafay (hereinafter
Rafay), all citizens of Pakistan who claimed against Pakistan, except, Maheen,
a U.S. citizen and claimed against that country.
[2]
The
claimants’ story unfolds with the secret marriage between Nadeem and Saima in
August of 1999 over the strenuous objections of their parents and, in
particular, those of Saima’s father, is a strict religious fundamentalist, who
wished her to marry a devout member of their community.
[3]
I
summarize the significant events of their journey:
1.
In January,
2000, Saima joins her husband in Saudi Arabia where he was teaching. It was only then their families
learned of the secret marriage. They were very displeased as evidenced by
Nadeem’s father’s letter to him in January 2000 stating “the games of murders
will start” because his wife had disgraced the families;
2.
In July,
2000, pregnant with her first child, Saima returns to Pakistan remaining hidden for five
months during which time she unsuccessfully attempted reconciliation with her
family. Health and visa problems were advanced as reasons for her return to Pakistan;
3.
In November,
2000, she rejoins her husband in Saudi Arabia with Rafay;
4.
In July
2001, in possession of U.S. visas, the family of three
travels to the United
States;
5.
In August,
2001, Nadeem returns to Pakistan ostensibly to visit his
ailing grandmother and to attempt to reconcile with his family;
6.
A few
months later,
Nadeem rejoins his family in the United States where Maheen is born;
7.
In January,
2002, all of the family returns to Pakistan to reside in separate quarters
in Nadeem’s parents’ compound in Lahore
in the belief a reconciliation had taken place, a belief which quickly
shattered when, it is alleged, Nadeem’s father attempted to poison Saima and
the children. Moreover, Saima’s father found out of their return and he
organized her arrest and, after her release through the payment of a bribe,
arranged for an attack on her and a kidnapping of the eldest son;
8.
In
March, 2002, the family when into hiding in another city in Pakistan. In April of 2002
Nadeem returned to the United
States to earn
money so the rest of the family could join him. Saima’s father found out where
she was staying and arranged an attack on her;
9.
In July
2002, Saima and the children fled Pakistan
arriving in the United States on July 20, 2002 staying there until they
came to Canada in early 2003 making
refugee claims on February 28, 2003.
The
Tribunal’s Decision
[4] The Tribunal first rejected
Maheen’s claim against the United Sates which had been put forward on the basis
of section 97 of the Act, a person in need of protection if she returned
alone to the United
States
without her parents. The Tribunal concluded there was no evidence that the U.S. authorities
would treat her, intentionally or by neglect, in a cruel and unusual manner in
terms of the quality of care available to her in that country. This finding
was not seriously challenged by the claimants.
[5] As to the rest of the family’s
claims against Pakistan, the Tribunal’s decision turned on
credibility. The Tribunal did not believe their story of persecution by
non-state actors, i.e. their parents. The credibility findings were
principally based on:
1. Repeated reavailments
to Pakistan;
2. Delay in leaving Pakistan when in possession of
valid U.S. visas in 2002;
3. Failure to claim in
the United
States.
[6] On these three factors, the Tribunal
concluded:
“The
claimants’ actions seriously undermine the credibility of the alleged fear of
persecution.”
[7] With respect to the claimants’ credibility,
the Tribunal identified the following other factors:
“…the
claimants’ testimony contained inconsistencies, omissions and perplexing
improbabilities that were not satisfactorily explained.”
[8] The
Tribunal concluded:
“I
find the claimants failed to provide sufficient credible and trustworthy
evidence to support their claims.”
[9] Concerning the medical records produced
by the claimants as corroboration for the alleged assaults and poisoning, the
Tribunal asked and were given the claimants’ consent to have those documents
verified through the Canadian Mission in Islamabad because “it is a very sad
fact fraudulent documents are regularly presented in support of Pakistani
refugee claims.”
[10] Because of the one-and-a-half year delay
in obtaining results which were still outstanding, the claimants asked, on
November 2, 2005, that their claims be decided without further delay. The
Tribunal agreed and their claims were decided based only on the evidence
received during the hearing.
[11] The Tribunal organized its lengthy
reasons around the following events:
1. The July 2000
reavailament;
2. The April [sic] 2001
reavailment;
3. The 2001 failure to
claim in the U.S.;
4. The January 2002
reavailment;
5. The delay in leaving Pakistan in 2002;
6. The failure to claim in
the U.S. 2002-2003; and
7. Other credibility
concerns.
[12] With respect to the January, 2000
reavailment by Saima, the Tribunal painted the context by stating her
return to Pakistan “was fraught with
danger” because of the parents’ attitude to the marriage; it rejected the
reasons advanced for the reavailment: her health and visa problems. The
Tribunal determined there was no evidence to corroborate the initial
explanation for her return to Pakistan: health problems relating to her pregnancy. The Tribunal
pointed to their friend’s affidavit which did not mention anything about
Saima’s health or pregnancy and the Saudi doctor’s advice was simply that the
“atmosphere would be better in Pakistan.”
[13] The Tribunal discounted her visa
problems noting this issue was not originally mentioned in the PIF and
expressing the view “dependants of non-Saudi nationals, including Pakistanis,
are permitted to reside in Saudi Arabia. The schools at which the male claimant was
employed cater to that very community. In the circumstances I find it
implausible the female claimant would be refused an extension of her visitor’s
visa or was not issued a residency permit.”
[14] As to Nadeem’s August 2001
reavailment, the Tribunal concluded his decision to return to Pakistan from
the United States at that time “is equally unreasonable despite everything
which had previously transpired, including the clear and unmistakable threats
allegedly conveyed by the female claimant’s mother only months before the male
claimant returned to Pakistan to attempt to reconcile with the families
because, it is alleged, the female claimant was “very uncomfortable, upset and
isolated from the rest of the family.””
[15] According to the tribunal, “this first
explanation makes little sense in the context of what the claimants allege they
knew were serious threats to their lives…but there is no evidence anything had
changed in the interim or that the risk to the claimants had diminished.” The
Tribunal was of the view “other, safer, methods of sounding out reconciliation
(for example the intervention of friends or respected community leaders, or
contact by letter or telephone) might have been attempted prior to assuming the
risk of physically returning to both the country of persecution and the home of
one of the alleged persecutors. The decision is neither reasonable nor
reasonably explained.”
[16] The Tribunal averted to the second
reason for his return, namely his grandmother’s illness. The Tribunal was of
the view returning to Pakistan to see his grandmother
“thereby bringing the male claimant into direct contact with his family, is not
reasonable.” The Tribunal specifically took into account the father’s very
threatening letter to Nadeem sent to him in Saudi Arabia in January of 2000. According to the
Tribunal, there was no evidence the risks had diminished in April 2001 and, in
the circumstances, it was of the view his return to Pakistan in 2001 was
inconsistent with a genuine subjective fear “and, again, casts considerable
doubt on the credibility of the allegations.”
[17] As to the failure of the claimants
to claim in the United Sates in 2001, the Tribunal referred to Nadeem’s
testimony the family did not make an asylum claim upon first arriving in the
U.S. in 2001 because his job in Saudi Arabia was going well and the plan was to
return to that country. He was asked to explain why his employment history
recorded the Saudi job ending in July, 2001 and a period of self-employment
commencing in August, 2001 in Pakistan the Tribunal stating “the male claimant
explained he had “lost” his passport and airline tickets during the 2001 trip
to Pakistan and, as a result, could not re-enter Saudi Arabia in accordance
with the terms of his visa.” The Tribunal stated the passport in question was
before the Tribunal as part of Exhibit “R-2” and wrote “Questioned on this
point, the male claimant attempted to reverse his story; the passport had been
hidden in his father’s chest by someone in his home and only found again in
September or October. When questioned on these matters, the female claimant
testified the male claimant’s parents took the passport and told her husband
they would return it if he left her.”
[18] The Tribunal also noted this
explanation he “forgot” to include the information in his PIF or in the various
amendments to the PIF. The Tribunal was of the opinion the explanation for the
omission was not reasonable and was inconsistent with Nadeem’s work history as
described in his PIF. The Tribunal noted the claimants failed to provide any
evidence from the Saudi Arabian employer to corroborate the loss of the visa or
confirm termination rather than resignation from his position.
[19] The Tribunal found, on a balance of
probabilities, “the claimants lied with respect to their intention to return to
Saudi Arabia and planned either to remain in the United States or return together to Pakistan following the birth of
their second child. The claimants’ evidence on this point profoundly and
negatively affects my assessment of their credibility in general.”
[20] On January, 2002 reavailment the
Tribunal stated “the male claimant’s parents are alleged to have finally agreed
to accept the female claimant in January, 2002 because the family would live in
Pakistan sooner or later.” The
Tribunal stated “again, without the explanation for the loss of the Saudi job,
this was not necessarily the case in January, 2002.” The Tribunal concluded:
“There
is no plausible explanation given for the parents’ alleged change of heart
toward the claimants especially given the female claimant’s explanation for the
hiding of the claimant’s passport. No reasons were offered as to why the
claimants felt they were now safe from the female claimant’s family. For the
reasons provided above, I do not accept this evidence as credible and find the
decision to reavail inconsistent with a genuine fear”
[21] In terms of the delay in leaving
Pakistan in 2002, while in possession of U.S. visas, the Tribunal could not understand why
the claimants would not do so following the alleged poisoning and Saima’s
alleged arrest. The Tribunal noted her whereabouts where known to her family
and her father had allegedly used police contacts to have her arrested and
purportedly had agents all over Pakistan. The Tribunal concluded “if any of this is
true, which I doubt, the family’s failure to leave Pakistan is not reasonable. The
male claimant’s subsequent decision to leave his wife and children behind when
he returned to the United
States is
even more unreasonable particularly as it appeared she was at the greatest risk
of harm.”
[22] Moreover, the Tribunal could not
understand the assertion that financial problems prevented any earlier departure
by the entire family. The Tribunal could not understand Saima’s testimony she
was in the process of seeking a rental accommodation in Sialkot, reasoning “if funds
were available for that purpose I do not accept funds were unavailable to allow
the family to join the male claimant in the United States. Further, if the plan
was to leave once funds were available it made no sense to spend money on a
rental and leave the relative safety of the male friend’s home. I find the
delay in leaving Pakistan inconsistent with a
genuine subjective fear.”
[23] Finally, in terms of the failure to
claim in the U.S. in 2002-2003, the claimants alleged they did not do so
because they feared removal to Pakistan. According to the Tribunal, “this explanation is
nonsense” because the claimants were in the U.S. with valid visas and had legal status to remain
in that country for six months after their arrival. The Tribunal stated “they
made no attempt to either apply for asylum or, if so convinced the outcome would
be negative in the U.S., to come to Canada as soon as possible and
make a claim.” The Tribunal again concluded the claimants’ behavior was
inconsistent with a genuine fear and undermined their credibility.
[24] The Tribunal identified the following
other credibility concerns:
1. The Tribunal could
not reconcile the father’s attitude towards women with the fact Saima attained
a higher education, worked outside the home and was unmarried at the age of 22;
2. Her testimony how she
obtained her employment letter was inconsistent with the evidence she had been
locked up in her room following the disclosure of her desire to marry Nadeem;
3. In their PIF they wrote
that they were given first aid in a local clinic following the February, 2002
assault and kidnapping instigated by Saima’s father. However, they provided
documentary evidence not from a clinic but from a hospital to corroborate the
assault. The Tribunal concluded at page 15 “there is nothing on the face of
the hospital reports concerning the alleged poisoning to support finding the
diagnosis of suspected poisoning relates to a criminal act rather than a
serious but otherwise innocent incident of food poisoning.” The Tribunal also
observed the hospital reports “are not formal medical-legal reports as required
in cases of a suspected criminal nature.” The Tribunal was also concerned with
Nadeem’s testimony that the hospital felt there was an intentional poisoning
but he could not explain why the hospital did not inform the police in those
circumstances. It added “his explanation concerning the loss of lab reports
and other corroborative documents was unbelievable. The absence of a genuine
medical–legal report led to her conclusion that the poisoning, if it did take
place, did not appear criminally induced to the treating physicians;
4. The Tribunal applied the
same analysis to the Sailkot hospital report. It stated the injuries “are not
identified as the result of a physical attack, are equally consistent with
injuries that might be received from a fall, and no medical-legal report is
provided”;
5. As to the medical note
from a U.S. hospital with respect
to the son, the Tribunal was of the view the document did not assist in
corroborating the claimant’s allegations.
The Claimants’ Issues
[25] The claimants advanced the following
issues in their challenge to the Tribunal’s decision:
1. The Tribunal violated
the principles of natural justice by fettering its discretion when it applied
the Chairperson’s Guideline 7 regarding the order of questioning;
2. The Tribunal had an
obligation to provide a clear evidentiary basis for its critical credibility
findings and failed to do so and, in particular, failed to comply with section
18 of the Refugee Protection Division Rules which require notice to the parties
before using any information or opinion that is within the specialized
knowledge of the Tribunal in order to provide the parties an opportunity to
make representations on the reliability and use of the information or opinion
and to give evidence in support of their representations. The alleged breach
is particularly aimed at the use of the Tribunal’s specialized knowledge
regarding whether non-Saudi nationals were permitted to reside in Saudi Arabia or could obtain
visitors visas to do so;
3. The Tribunal misstates
the evidence in several places particularly with respect to its findings
regarding the diminution in April, 2001 of the risk from family harm;
4. The Tribunal failed to
conduct a reasonable assessment of the evidence as a whole in that the
applicants had provided the Tribunal with a plethora of documentation in
support of their claim. The claimants allege the Tribunal rejected much of the
evidence in a perverse and patently unreasonable manner.
Analysis
(i)
Standard of Review
[26] Credibility findings are findings of
fact; such findings are reviewable on the standard provided for in section
18.1(4)(d) of the Federal Courts Act, 1998 which states that the court
should not intervene unless the Tribunal based its decision on an erroneous
finding of fact made in a perverse or capricious manner or without regard to
the material before it.
[27] The Tribunal drew many of its
credibility findings based on inferences drawn from the evidence. In this
connection, I am reminded of the words of Justice Décary in Aguebor v. Minister
of Employment and Immigration (1993) 160 N.R. 315 at paragraph 4:
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. [Emphasis mine]
[28] I am also reminded what Justice
L’Heureux-Dubé said on the point in Canadian Union of Public Employees,
Local 301 v. Montréal (City) [1997] 1 S.C.R. 793 at paragraph 85:
85
We must remember that the standard of review on the factual findings of an
administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R.
825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts
or weigh the evidence. Only where the evidence viewed reasonably is
incapable of supporting the tribunal's findings will a fact finding be patently
unreasonable. An example is the allegation in this case, viz. that there is
no evidence at all for a significant element of the tribunal's decision: see
Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at
p. 669, per McLachlin J. Such a determination may well be made without an
in-depth examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J.,
at p. 1370. [Emphasis mine]
[29] The errors of law alleged by counsel
for the applicants are reviewable on the standard of correctness (see, Pushpanathan
v. Canada (MCI), [1998] 1 S.C.R. 982).
(ii) Discussion
[30] Counsel for the applicants argued the
Tribunal misread the evidence in a number of ways which led it to discount the
explanations provided for by the applicants or otherwise draw unreasonable
inferences. I cite the following examples cited given at the hearing:
§
The
Tribunal’s analysis of family’s financial difficulties when it went into hiding
in Sailkot was tainted by the fact Saima and the children never moved out of
the friend’s small house;
§
The
Tribunal’s discussion on reavailment fails to appreciate the fact the family
had a profound desire to reconcile with their parents;
§
The
Tribunal’s thinking on the failure to claim in the U.S. in 2002-2003 failed to
take into account the evidence on the record this period was post-9/11 and the
treatment of Pakistani citizens in the U. S. was harsh;
§
The
Tribunal made a mistake when it stated there was reavailment in April 2001;
§
The
Tribunal erred when it found, in 2002, Saima and the children did not leave
Nadeem’s parent’s family compound;
§
The
Tribunal’s reasoning was illogical in a number of ways on material points.
[31] I agree with counsel for the respondent
the applicants’ submissions on this point cannot be accepted for a number of
reasons namely:
1. The arguments amount to
a plea to this court to reweigh the evidence which it cannot do;
2. They are based on a
microscopic reading of the reasons. If the reasons of the
Tribunal are read as a
whole, which they must be, these reasons amply demonstrate the Tribunal did not
misstate or ignored the evidence;
3. The evidentiary record
read as a whole supports the Tribunal’s credibility findings;
4. Even if one or two
errors may have slipped in the Tribunal’s reasons, such errors were not
determinative because the central finding on credibility was that the Tribunal
did not believe the applicant’s story – persecution by their parents – is
otherwise supportable at law;
5. The inferences drawn
where not unreasonable and it had not been demonstrated they were not supported
by the evidence;
6. The Tribunal was
entitled to reject the explanations given by the applicants.
[32] I am not persuaded the Tribunal erred
in the treatment it gave to the documentary evidence submitted by the
applicants. It assessed that evidence, particularly the medical reports and
the friend’s affidavit, and gave its reasons why it did not accord the evidence
the weight which the applicants wanted.
[33] The jurisprudence supports the factors
which the Tribunal took into account in arriving at its credibility findings.
These factors were, as noted: reavailment, delay in fleeing one’s persecutors,
and failure to claim refugee status as soon as reasonably practicable.
[34] Reavailment is evidence of a lack of
subjective fear (see, Nimour v. Canada (MCI) (T.D.) [1999] F.C.J.
No. 1356).
[35] Reavailment is also evidence of a lack
of well-founded fear of persecution (see, Caballero v. Canada (Minister of Employment
and Immigration)
(F.C.A.) [1993] F.C.J. No. 483. This case also supports the proposition that
an error made by the Tribunal in the face of reavailment amounting to a lack of
a well-founded fear of persecution, is of no consequence.
[36] Delay in making a claim for refugee
status is an important factor which the Tribunal is entitled to consider (see, Heer
v. Canada (Minister of Employment
and Immigration)
(F.C.A.) [1988] F.C.J. No. 330). Reference may also be made to Huerta
v. Canada (M.E.I.) (1993) 157 N. R. 225
(F.C.A.).
[37] Counsel for the applicants also argued
two legal errors namely the fettering of the Tribunal’s discretion in applying
the Chairperson’s Guideline 7 in respect of the order of questioning the
applicants as well as breach of Rule 18 of the Refugee Protection
Division Rules by the Tribunal when it had recourse to its specialized
knowledge on the issue of Saima’s Saudi Arabian visa without notifying the
applicants so they could address the point.
[38] Assuming, without deciding, these were
two errors of law in the form of a denial of natural justice, in my view, such
errors would not lead this court to intervene to quash the Tribunal’s decision
and remit the applicants’ refugee claims to a differently constituted
Tribunal.
[39] It is not every denial of natural
justice or breach of procedural rules that warrants the Tribunal’s intervention
(see, Yassine v. Canada (M.E.I.) (FCA) [1994] F.C.J. No. 949 and Gale
v. Canada (Treasury Board) [2004] FCA 13).
[40] This court will not remit a case back
to a different decision-maker if it is shown the refugee claims are hopeless or
the result on referral back is inevitable and would be the same as the decision
under review (see Yassine, above).
[41] I apply this principle to the case
before me.
[42] In my view, the Tribunal’s credibility
findings based on reavailment, delay in leaving one’s alleged persecutors and
failure to claim for refugee status in the U.S. were very strong in that they were based on
many examples of the applicants’ behavior being inconsistent with a
well-founded fear of persecution.
[43] If one or two of those elements should
fall by the wayside because of legal errors, in the case at hand, there were a
substantial number of behavioral anomalies remaining which the Tribunal was
entitled to take into account in not believing the applicants were persecuted
by their families because the applicants’ explanations were not reasonable.
[44] Justice MacKay in Hankali v. Canada
(M.C.I.) T.D. [1996] F.C.J. No. 339 arrived at a similar conclusion in the
face of a finding the applicant there had no objective basis for his fear of
persecution because of his own evidence of returning to Turkey on four or five
occasions, from work or travel abroad.
JUDGMENT
This judicial review application is dismissed.
If any party wishes to formulate a certified question for consideration by the
court it must do so by written submissions served and filed no later than
January 8, 2007 with reply submissions by the other party served and filed no
later than January 15, 2007.
“François
Lemieux”
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