Date: 20060412
Docket: IMM-4745-05
Citation: 2006
FC 471
Ottawa, Ontario, April 12th, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
MUHAMMAD AHMAD CHAUDHRY
(a.k.a. CHAUDHRY MUHAMMAD AHMAD)
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review of a decision of the Immigration and Refugee
Board (the Board) dated July 21, 2005 which found that the applicant was not a
Convention refugee or person in need of protection because:
1. he lacked
credibility;
2. he failed to
establish his identity as a person persecuted for political opinion; and
3. he had no
subjective or objective fear of persecution in Pakistan.
Facts
[2]
The
applicant was a 41 year-old citizen of Pakistan at the time of his hearing before the
Board. In 1997, he became a member of the Pakistan Muslim League in a
particular group called the Nawaz Group (PML(N)). He also claims to be
instrumental in establishing the Alliance
for Restoration of Democracy (ARD), a political association connected with the
PML(N). The applicant resided in the district of Sialkot, where he claims to
have assisted a PML(N) candidate during the 2002 election campaign, solicited
many new members to the party, publicly condemned government practices at a
protest on October 12, 2002, and served as vice-president of the ARD in Sialkot.
Assault and threats
[3]
The
applicant’s evidence is that on May 4, 2004, his vehicle was stopped and he was
assaulted by supporters of two members of the rival PML(Q): Ameer Hussain, then
the Speaker of Pakistan’s National Assembly; and Ajmal Cheema, then Minister of
Industry in the Punjab. The applicant’s assailants threatened
to kill him if he did not abandon his political allegiance. The applicant’s
father is said to have attempted to make a First Information Report against Messrs.
Hussain and Cheema, which the police refused to register by reason that there
were no witnesses.
[4]
Two days
later, on May 6, 2004, Messrs. Hussain and Cheema, the Speaker and the Minister
of Industry respectively, came to the applicant’s house with bodyguards and guns
drawn, threatening to kill him as an example to other PML(N) supporters unless
he abandoned his political allegiance within 14 days and ceased all attempts to
register complaints against them. As a result of these incidents, Mr. Chaudhry
states that he was forced to step down as District Coordinator for the ARD in
Sialkot and fled to Canada. To document the threats
against him, the applicant put before the Board:
1. two affidavits
sworn by neighbours who witnessed the incidents; and
2. two letters from
PML(N) and ADR senior executives that describe the applicant’s high profile in
the party and the threats made against him.
Flight to Canada
[5]
Mr.
Chaudhry was issued a valid passport from the Pakistani government in Lahore in May 2004. He fled Pakistan on May 10, 2004 and entered
Canada on May 13, 2004 at Toronto’s Pearson International Airport via the U.A.E. and U.K. using forged documents. The applicant immediately
claimed refugee protection at the airport terminal.
Claim for refugee protection
[6]
The
applicant claimed a well-founded fear that he would be persecuted by violent elements
of the PML(Q) because of his political support for, and high profile membership
in, the PML(N). Mr. Chaudhry further claimed that his life would be at risk if
he were returned to Pakistan because of the previous death
threats made against him.
The decision under review
[7]
The Board
rejected the applicant’s claim because he lacked credibility, failed to
establish his identity as a person persecuted for political opinion or
membership in the PML(N) or ARD, and had no subjective or objective fear of
persecution in Pakistan. The applicant conceded that
he had no fear of obtaining his passport from the Pakistani government, which
the Board found inconsistent with a subjective fear of persecution by that same
government. The panel concluded that there was no objective fear of persecution
by reason that: (1) a letter from Adress Ahmed Bajwa indicated that the
applicant’s father was District Treasurer for the PML(N), who still resides at
his home without fear of persecution; and (2) documentary evidence from May 5, 2004
indicates there have been no recent incidents of violence against the PML(N),
which attended conferences on President Musharraf’s foreign policy in 2003. The
panel made its adverse credibility finding because:
(a) the applicant’s
stated solicitation of 2000 new PML(N) party members in his district is
inconsistent with his PIF, which makes no mention of that number;
(b) a letter from
Adress Ahmed Bajwa discloses that his father, mother and sister were also
involved in the PML(N), which the applicant did not mention in his testimony;
(c) whereas the letter
from Khawaja Awais Mushtaq states that Mr. Chaudhry had to step down as
District Coordinator for the ARD in Sialkot because of the assault and death
threats in May 2004, the letter made no mention of the applicant’s campaigning
in 2002 and the letterhead was from the author’s law office and not the PML(N)
or ARD;
(d) the applicant’s
testimony that his family was harassed by income tax authorities in connection
with their business was omitted from his PIF;
(e) the applicant’s
testimony that he publicly condemned the Musharraf government’s practices at an
October 1999 rally was omitted from his PIF;
(f) the applicant gave
no oral explanation of his PIF statement how PML(N) workers were threatened
during the 2002 election; and
(g) the applicant did
not produce newspaper or medical reports substantiating the assault and threat
incidents in May 2004.
Issues
[8]
The sole issue
raised on this application is whether the Board made a patently unreasonable
credibility finding in respect of an issue material to the applicant's refugee
claim.
Standard of Review
[9]
Since the
issue in this case is whether the Board erred as to the facts, the standard of
review is patent unreasonableness. See Malik v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1617 per Mr. Justice Pierre Blais
at paragraph 7. To set aside the Board’s decision as being patently
unreasonable, the decision must be based on a finding of fact that is clearly
wrong, and capricious or without regard to the evidence, as articulated by
Justice Blais in Malik at paragraph 17:
¶ 17 To warrant the Court's intervention, the applicant
had to fulfill three conditions: first, that the findings of fact had to be
clearly erroneous, which is not the case for the reasons previously expressed;
second, that the findings had to be capricious or without regard for the
evidence, which is not the case either; and third, to be set aside, the
decision itself had to be based on erroneous findings of fact.
Analysis
[10]
The Court
found, and both parties at the hearing acknowledged, that the Board’s reasons
were difficult to comprehend and not clear. The panel made four patently
unreasonable findings of fact, as follows.
(1) PML(N) membership card
[11]
The Board
referred to the applicant’s PML(N) card issued in 1997 and questioned why he
did not have a more recent one. The evidence is that the membership card has
indefinite duration unless the person transfers their affiliation. From the
reasons, it is not clear whether the Board is making an adverse finding because
of the card. It is clear to the Court that the card was valid and, with other
evidence, establishes his membership in the PML(N).
(2) Soliciting new PML(N) party
members
[12]
The Board
drew an adverse inference from the applicant’s failure to state in his PIF
that, as of the date of his membership in the PML(N) in 1997, he solicited 2000
persons to join the party. This finding misstates the applicant’s evidence and is
patently unreasonable.
[13]
In his
PIF, Mr. Chaudhry stated:
As a result of my activities, the PML(N) became so popular
that its membership increased manifold before the 1997 elections, which
eventually was won by the PML(N).
In response to a question from the panel, the applicant
stated that he solicited 2000 persons to join the party. In the Court’s view, the
important fact that the applicant solicited new members to the PML(N) was
included in his PIF, which information was further explained to number at 2000
when he was questioned by the panel at his hearing.
(3) May 2004 assault and death
threats
[14]
The Board made
a patently unreasonable adverse inference from the lack of newspaper articles,
First Information Reports from the police, or medical reports documenting the
applicant’s assault and death threat in May 2004. The Board ignored the
applicant’s evidence that the police refused to register a First Information
Report, that he was medically treated by his family, and that his neighbours
witnessed the events which evidence they swore on affidavit.
[15]
In support
of this oral evidence, the applicant documented these incidents with letters
from Idress Ahmed Bajwa, President PML(N) Sialkot District, and Khwaja Awais
Mushtaq, Vice President ARD Sialkot District, respectively dated January 13 and
10, 2005. The letters confirm he was forced to flee the country. The
affidavit sworn by neighbour Samson Walayat Masih on October 27, 2004 confirms
that he witnessed the applicant’s assault on May 4, 2004. The affidavit states
in part:
3-
That I am
neighbour of Mr. Chaudhry. On May 4, 2004, when I was returning from my work at
approximately 11.30 pm I saw some men beating a man on the street. I stopped as
I became afraid the men beating the man carried guns. After they left him lying
in the street injured and bruised. He could not move and I quickly helped him
to get up with the help of some other men who also came out to help.
4-
That we
took him to his house where his family were shocked and horrified to see him
such a state.
5-
That he
had received injuries and bruises on his face, arms and stomach.
6-
That I was
very shocked and terrorized after witnessing such a horrible incident.
[16]
The
affidavit sworn by neighbour Malik Arif Mahmood on October 26, 2004 confirms
that he witnessed Messrs. Hussain and Cheema enter the applicant’s house on May
6, 2004 with bodyguards who aimed their guns at him. The affidavit states in
part:
(2). That I am a
citizen of Pakistan,
(3). That I am a
neighbour of Mr. Chaudhry. On May 6, 2004, I witnessed the entry of Ameer
Hussain and Ajmal Cheema with their five body guards into Mr. Chaudhry’s house
at approximately 6 P.M. The body guards with heavily armed [sic], and
the neighbours who witnessed their coming were terrified.
(4). That I further
witnessed from the roof of my house the pointing of guns by the body guards at
Mr. Chaudhry, I became very afraid as I thought they were going to shoot him.
(5). That I have
know Mr. Chaudhry for many years and know that he is very politically active.
(6). That I know
Ameer Hussain and Ajmal Cheema as they are very well-known politicians of the
area, and I did see them enter Mr. Chaudhry’s house and talk to him loudly.
[17]
The May
2004 assault and death threats perpetuated by alleged PMN(Q) supporters and
leadership are central to Mr. Chaudhry’s claim of persecution based on
political affiliation. While it would be open to the Board to draw an adverse
inference from the absence of police, medical and media reports surrounding the
incidents, the panel was obliged to explain why it rejected the applicant’s
explanations, the two affidavits which are important, relevant and
contradictory evidence, and the letters from senior PML(N) officials. Instead,
the Board ignored or failed to consider the applicant’s evidence, and based its
decision to reject Mr. Chaudhry’s refugee claim on patently unreasonable
findings of fact.
(4) Country of Origin
documentation
[18]
The Board
concluded the National Documentation Package on Pakistan dated March 2, 2005 and the Country of
Origin Research document PAK42531.E dated April 5, 2004 indicate there have
been no recent incidents of violence against the PML(N), which attended
conferences with President Musharraf on foreign policy in 2003. This finding
misstates the evidence and is patently unreasonable.
[19]
The
evidence is that PML(N) members were arrested in Punjab in 2000. The Board misapprehended the
applicant’s place of residence to be Gujarat, not Sialkot. The district of Sialkot may lie within
the Punjab province, where the arrests against PML(N) members was said to
occur. It was necessary for the Board to satisfy itself that Punjab does not
include Sialkot, which it did not do.
Conclusion
[20]
While Mr.
Chaudhry has not taken issue with some of the adverse inferences made by the
Board, and while in assessing these remaining inferences I conclude that they
are not assailable, I conclude that the Board based its decision that the
applicant is not a Convention refugee on four patently unreasonable findings of
fact. Accordingly, the decision of the Board must be quashed and
remitted to a different panel for redetermination.
[21]
The parties did not propose a question of general importance for
certification, and none is certified.
JUDGMENT
THIS COURT ORDERS that:
The application for
judicial review is allowed, the Board's decision dated July 21, 2005 is
set aside and the matter remitted to a differently constituted panel for
redetermination.
“Michael
A. Kelen”
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