Tahir v. Canada (Minister of Citizenship and Immigration), docket IMM-4610-97

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docket IMM-4610-97

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Date: 19980708

Docket: IMM-4610-97

BETWEEN:

MOHAMMAD SALEEM TAHIR

ROBINA SALEEM

UMAIR SALEEM

IMAD SALEEM

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

(Delivered orally from the Bench at Toronto, Ontario

on Tuesday, July 7, 1998)

HUGESSEN, J.

[1] This is an application to review and set aside a decision of the Refugee Division which rejected the applicant's claim for Convention refugee status.

[2] The decision of the Board was based primarily upon its finding that the applicant, the principal claimant, was not credible because of perceived implausibilities and inconsistencies in his evidence as well as because of certain omissions from the personal information form which he had filed.

[3] It is well settled law now that the assessment of a claimant's credibility is peculiarly within the province of the Board and that its findings in that regard are entitled to a high degree of deference. The Court will only interfere with those findings if they are unreasonable or have no foundation in the evidence¹.

[4] The Board has a very difficult task to perform. It generally has to assess the validity of a Convention refugee claim solely or principally upon the evidence of the claimant and without the benefit of evidence other than of a documentary nature emanating from the Country from which the claimant has come. That, as I say, is a difficult task and the Board is frequently required to make its assessment upon the very difficult basis of its view of the overall credibility of the claimant. This Court is ill-placed to attempt to second guess the Board in that function unless, as I say, it can be shown that the Board has gone beyond the limits of what is reasonable or has based itself on material which was not properly before it or otherwise upon irrelevant considerations.

[5] In this case, as I have said, the Board made a number of findings with respect to implausibility of the claimant's story, with respect to inconsistencies, and with respect to omissions from his personal information form ("PIF").

[6] Counsel for the applicant takes issue with all of those findings. In order to appreciate the burden of counsel's submissions, it is necessary to look at each of those findings individually and at the attack which is made upon them.

[7] 1. The Board found that the applicant's story was implausible insofar as he said that he did not have detailed knowledge of the activities of this father and, to a lesser extent, of his brother and cousin in a religious, apparently terrorist, organization know as the SSP.

[8] The Board noted that the claimant had been living under the same roof as his father since 1989, that the claimant was a well educated and intelligent person, and that he was the eldest son of his father's family. In those circumstances, the Board judged that it was implausible that the claimant would not have more knowledge than what he could simply learn from reading the newspapers and watching television of his father's activities in the SSP which were considerable and extensive.

[9] I am quite unable to say that the Board's finding in this respect was unreasonable. Indeed, I too would be inclined to question the plausibility of the claimant's assertion that he had no detailed knowledge of what his father was up to in those circumstances. But that is unimportant; what is important is that the Board made that assessment and that is a matter which was for them to judge.

[10] 2. The Board were concerned with the omission from the applicant's PIF of any mention of certain threats which were made to him allegedly by the police at the time of his release from detention in April of 1995. The Board were correct to state that those threats were not mentioned and the Board's assessment of the fact that the omission to mention those threats was significant is not one with which the Court should interfere.

[11] 3. The Board were concerned with an incident which allegedly occurred in October, 1995 while the applicant was staying in Pesharwar when, according to the personal information form, the police searched the house where he was staying looking for his brother. The Board wrongly thought that the applicant had in fact stated that the police were looking for him and they saw this as an inconsistency or a contradiction. It is the case, however, that there is a minor contradiction between what was said at the hearing and what was said in the personal information form. In the latter, he mentions only his brother; in the former, he mentions both his father and his brother. And it is also the case that the Board's misunderstanding of what the applicant said in his testimony does find some support in a somewhat confused passage in which the applicant refers to the search.

[12] 4. The Board were extremely concerned with an assertion by the applicant that he went into hiding after October, 1995 and, in particular, with the assertion which he made at the very end of his cross-examination that, contrary to what he had implied earlier, he had been in hiding not only in Lahore but also in Rawalpindi a good many miles away. There is no mention of Rawalpindi in the applicant's personal information form and it was certainly, as I have said, the implication both from his personal information form and from his oral evidence up until the last stages of his cross-examination that he had been in hiding in Lahore. The Board's concerns were, it seems to me, fully justified.

[13] 5. The Board were also concerned with the mention in the applicant's evidence that his father had gone into hiding in June of 1995. That concern was also justified since the applicant's claim was to a large extent based upon the fact that he was perceived to be associated with his father and his father's unacceptable activities. There was no mention of his father going into hiding in the personal information form and the instructions which accompany that form make it quite clear that applicants are expected to mention incidents of importance, and going into hiding is certainly an incident of importance, which occurred with respect to a close family member.

[14] 6. As the Board pointed out, during the period when he was supposed to have been in hiding, the applicant appears to have wound up his business affairs and there is evidence from which the Board could conclude that he had also sold some real estate that he owned. I can see nothing unreasonable about the Board's concerns in that regard.

[15] 7. Quite apart from the Board's concerns about the personal information form it also expressed concern about the applicant's explanation as to why his family had not brought their personal documentation with them when they left the country. As the Board pointed out, there was a considerable period of time which elapsed between the decision to leave and the actual leaving. Once again, I cannot say that the Board's concerns were misplaced or unreasonable.

[16] 8. Finally, the applicant takes issue with the Board's refusal to attach any weight to a letter from the doctor who is said to have treated him after his release from incarceration in April of 1995. While I think the Board was somewhat severe in their strictures about that letter and the circumstances in which it was written, it remains the case that where the Board found, as they did, that the applicant's story was itself not credible, the doctor's letter could add nothing to it. It was only if the applicant had been found to be credible that the doctor's letter would have been corroborative.

[17] On the whole, therefore, it is my view that while the Board's decision is not entirely free from criticism, it is one which passes the test of reasonableness and is therefore not one in which the Court would be justified in intervening.

[18] Accordingly, I propose to dismiss the application but before doing so, I will hear from counsel as to whether this case raises any question of general importance.

"James K. Hugessen"

Judge

Toronto, Ontario

July 8, 1998

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-4610-97

STYLE OF CAUSE: MOHAMMAD SALEEM TAHIR ET AL.

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

DATE OF HEARING: JULY 7, 1998

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER BY: HUGESSEN, J.

DATED: JULY 8, 1998

APPEARANCES:

Mr. Tom McIver

For the Applicant

Ms. Neeta Logsetty

For the Respondent

SOLICITORS OF RECORD:

McIver & McIver

372 Bay Street

Suite 900

Toronto, Ontario

M5H 2W9

For the Applicant

George Thomson

Deputy Attorney General

of Canada