Date: 20031217
Docket: IMM-1720-02
Citation: 2003 FC 1485
Toronto, Ontario, December 17th, 2003
Present: The Honourable Mr. Justice Mosley
BETWEEN:
NIGHAT SHAHEEN, SABA MUMTAZ, NABEEL MUMTAZ, NIDA MUMTAZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Nighat Shaheen and her three children, Saba Mumtaz, Nabeel Mumtaz and Nida Mumtaz, seek judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"), dated March 12, 2002. In that decision, the Board found that the Applicants were not Convention refugees. The Applicants seek an order setting aside the Board's decision and an order that the claim be referred back to the Board for redetermination with such directions as this Court considers appropriate.
BACKGROUND
[2] Ms. Shaheen and her children are all citizens of Pakistan, from the town of Jhelum in the Punjab province. They alleged a well-founded fear of persecution from Shia extremists on the grounds of their religion and membership in a particular social group, namely as relatives of a Sipah-e-Sahaba Pakistan ("SSP") member.
[3] The Applicants are Sunni Muslims. They fear the Tehrik-e-Jaffria Pakistan ("TJP"), a Shia Muslim organization. Ms. Shaheen claims that on March 3, 1999, she was informed by a family friend that her husband, Mumtaz Khan, a member of the SSP, was kidnapped by the TJP. She claims that she was advised by this same friend that she and her three children should leave their house immediately for their own safety. They went to the friend's house for one night, during which, she claims, members of the TJP forced their way in looking for them. The Applicants were able to hide in the basement and left the next morning to go into hiding in Multan.
[4] The eldest son of the family was at that time living in Lahore, studying at school. Ms. Shaheen alleges that about two weeks later, while in hiding in Multan, she received information that her eldest son had also been captured by the TJP.
[5] Ms. Shaheen claims that she reported the kidnapping of her son and husband to the police but the police were unable to help them. To this date, she has had no word from her husband or eldest son.
[6] Ms. Shaheen and her children then moved to Karachi, where they believed it would be safer for them. She claims that in early June 1999 two men attempted to kidnap her younger son, Nabeel Mumtaz. This incident prompted her to realize that her family would not be safe anywhere in Pakistan. They left Pakistan on July 13, 1999 and claimed Convention refugee status in Canada the next day, upon their arrival in this country.
[7] The Applicants' refugee claims were originally heard by a two-member panel of the Board on June 5, 2000. This Board determined that they were not Convention refugees on June 19, 2000. The Applicants were successful in their application for leave and judicial review of that decision. On June 18, 2001, Justice Heneghan of this Court quashed the Board's decision and remitted the claim back to a differently constituted panel of the Board for redetermination.
[8] The reasons for setting aside the original Board decision were that its credibility findings were based on a "microscopic examination of the evidence", and that such findings were patently unreasonable. The Court also found that the Board erred in law in failing to consider the evidence put forth by the minor Applicant, Saba Mumtaz, and since it corroborated, in part, her mother's evidence, it should have been addressed by the Board.
[9] The Applicants' claims were heard again by a single-member panel of the Board on January 24, 2002. The evidentiary record from the original Board hearing, including the reasons for decision and the Federal Court's June 18, 2001 decision, was filed as part of the record before the Board. Ms. Shaheen and her daughter, Saba Mumtaz, testified before the Board.
The Board's Decision
[10] In its March 12, 2002 decision, the Board concluded that the Applicants had not demonstrated that there was a reasonable chance that they would be persecuted if returned to Pakistan. The Board's decision was based on negative conclusions of the credibility of the evidence tendered by Ms. Shaheen. The Board found that she was not credible because there was a lack of documentary evidence to corroborate her testimony.
APPLICANTS' SUBMISSIONS
[11] The Applicants submit that the Board erred in its understanding and application of Justice Heneghan's decision, remitting their claim for Convention refugee status back to the Board for redetermination. The Applicants argue that the Board did not reconsider the matter in good faith or in accordance with the Court's directions.
[12] The Applicants submit that the member of the Board exhibited an "unnatural zeal" in searching for any possible reason to doubt the Applicants' testimony and that there is no evidence to support the Board's conclusions, therefore, they are patently unreasonable.
[13] The Applicants submit that the Board erred in law in not applying the principle, set out in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.), that when an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is some reason to doubt their truthfulness.
[14] The Applicants then set out several credibility findings which they submit are patently unreasonable and not supported by the evidence that was before the Board.
[15] First, the Applicants refer to the Board's credibility finding at page two of its reasons regarding Ms. Shaheen's evidence on the question of whether she would have received help from the police in the town of Jhelum, had she sought their assistance. The Board paraphrased her evidence on this point to infer that she said that "...mostly Shia people live in that town and the police force is dominated by Shias." The Board then relied on documentary evidence and concluded that Ms. Shaheen's testimony was not persuasive or trustworthy because the documentary sources did not confirm that Jhelum had a "proportional very large Shia population" .
[16] The Applicants submit that this negative credibility finding is patently unreasonable as Ms. Shaheen never claimed that Jhelum was an important Shia area and did not claim that Jhelum had a large Shia population relative to the Shia populations of other cities in Pakistan. Further, the Applicants argue that they were not asked any questions related to these areas, nor did the Board refer to any documentary evidence that contradicted their testimony.
[17] Secondly, the Applicants submit that the Board erred in misconstruing Ms. Shaheen's testimony, as she never claimed that the police force was "dominated by Shia", but only that there were many police who were Shia.
[18] Next, the Applicants describe several ways that the Board erred in its analysis of the SSP. The Applicants contend that the Board's finding that the Applicants had "ample opportunities" to bring forward documentation on the nature of the SSP is patently unreasonable. They say the Board did not raise questions about the Applicants' understanding of the SSP at the hearing and therefore they were denied an opportunity to address this concern.
[19] The Applicants also submit that the Board's finding that Ms. Shaheen was not credible based on the fact that she "...felt compelled to submit the admission form from the SSP at the hearing" was patently unreasonable and unfair, given the fact that at the Applicants' initial hearing, Ms. Shaheen was found not to be credible, in part, because the Board found that she had tried to hide her husband's involvement with the SSP. Furthermore, the Applicants argue that the Board misconstrued the facts before it, in stating that the Applicants felt "compelled" to submit the SSP form at the hearing, when in reality, the SSP form was already part of the material from the original hearing, all of which was before the Board at the rehearing. The Applicants refer to a letter from the Board dated December 12, 2001, attached to the principal Applicant's affidavit, stating that all material from the initial hearing would be filed as part of the record at the new hearing. The Applicants argue that the Board's decision to give no weight to this document, in these circumstances, is patently unreasonable.
[20] The Applicants further submit that there is no evidentiary base for the Board's conclusion that they had intentionally intended to present a "distorted picture" of the SSP. The Applicants say that they did not provide a description of the SSP and they were not asked to do so by the Board member at the hearing. The Applicants say that they did not deny that the SSP was involved in violence, but rather stated that to their knowledge they did not believe that their husband/father was involved in violence.
[21] Another conclusion of the Board that the Applicants submit is patently unreasonable is the Board's finding that if the husband really had been kidnapped by the TJP, there would have been some documentation to support that allegation. The reasons of the Board indicate that it disbelieved the kidnapping of Ms. Shaheen's husband because there was no documentary reports about it, and therefore found that two First Information Reports submitted by the Applicants must be fraudulent. The Board's expectation that the documentary evidence would report the husband's kidnapping is patently unreasonable, as the evidence established that these types of incidents are common.
[22] The Applicants also argue that the Board's decision to give no weight to the psychologist's report is in error, as such determination was based on the conclusion that the Applicants' allegations of persecution were not credible.
[23] The Applicants next argue that the Board erred in failing to provide intelligible reasons in support of its conclusions on the change in country conditions. The Applicants describe the Board's analysis of this issue as "incomprehensible". Such a determination should be made primarily on documentary evidence, relating to the time period after the Applicants left Pakistan, and the date of the Board's hearing, however, the Applicants submit that the Board's analysis on this issue relates, in a brief and cursory manner, to its negative credibility findings.
[24] Finally, the Applicants submit that the Board's analysis of the applicability of section 2(3) of the former Immigration Act, R.S.C. 1985, c. I-2 (the "former Act") is erroneous, as the Board gave no reasons to support its conclusion on this issue. Relying on Adjibi v. Canada (Minister of Citizenship and Immigration) (2002), 219 F.T.R. 54, the Applicants say that the Board did not provide a thorough consideration of the section 2(3) issue in accordance with the jurisprudence.
RESPONDENT'S SUBMISSIONS
[25] The Respondent submits that the standard of review for credibility findings of the Board is patent unreasonableness: Singh v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 280 and Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (T.D.)(QL). In this case, the Respondent submits that the credibility findings of the Board are not patently unreasonable, as they were supported by the documentary evidence.
[26] The Respondent submits that even if the Board mischaracterized the manner in which evidence of the principal Applicant's husband's involvement in the SSP was brought forward, this error does not affect the Board's finding that the SSP is not an organization with a benevolent or social aspect. This error alone does not give rise to a reviewable error.
[27] The Respondent submits that it was not unreasonable for the Board to conclude that Mumtaz Khan was unlikely to belong to the SSP, given the Applicants' descriptions of him as a non-violent person. The documentary evidence was that the SSP is an organization that engages in violence and there was no evidence that the SSP engaged in non-violent activities.
[28] The Respondent submits that the Board's expectation that there would be some sort of report of the principal Applicant's husband's kidnapping in the documentary evidence was reasonable. The Respondent argues, in the alternative, that if the Board erred in viewing the evidence this way, this error does not affect other credibility findings that it drew and there is no reason to interfere with the Board's ultimate decision: Yassine v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308 (F.C.A.).
[29] The Respondent submits that the other errors alleged by the Applicants, related to the Board's assessment of the psychologist's report and the change in country conditions, cannot be accepted because any errors made in these areas do not affect the basis of the Board's rejection of the Applicants' claim because of negative credibility findings.
ISSUE
[30] Did the Board make patently unreasonable credibility findings that were material to the basis for its rejection of the Applicants' claim?
ANALYSIS
[31] It is well-established that findings of credibility of the Board are subject to a high degree of deference by a reviewing court, that being patent unreasonableness: Conkova, supra and Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.)(QL). This Court should not intervene with respect to the plausibility and credibility findings of the Board unless such findings are "so unreasonable" that they warrant such intervention.
[32] However, the Board's credibility findings are not completely immune from review: Sheikh v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 568 (T.D.)(QL). A negative decision regarding credibility must be stated in "clear and unmistakable terms": Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.).
[33] The Board is entitled to prefer the documentary evidence over an applicant's testimony: Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087 (C.A.)(QL) but it must give clear reasons for so doing: Okyere-Akosah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 411 (C.A.)(QL). A Board is entitled to rely on criteria such as rationality and common sense in assessing credibility: Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No 415 (C.A.).
[34] In my opinion, the Applicants have demonstrated that the Board's key credibility findings are patently unreasonable. The Board acknowledged, at page six of its reasons, that each credibility finding, in and of itself, was not sufficient to undermine the Applicants' allegations, but taken cumulatively, the findings led to the conclusion that there was insufficient, credible evidence to determine that the Applicants were Convention refugees. The Board's negative credibility findings were evidently the basis for its rejection of the Applicants' claim. As I have concluded that the three major credibility findings are unsupported by the evidence that was before the Board, this judicial review is allowed.
[35] First, the Board relies on the fact that the documentary evidence does not refer to the place where the Applicants lived, Jhelum, as being one of the "most important" areas for Shia Muslims and does not mention Jhelum as having a large Shia population, proportional to other cities of Pakistan. The Board draws from this that Ms. Shaheen's assertion that Jhelum had a large population of Shias and that she would not receive protection from the police force is not credible. At page two of its reasons, the Board states that Ms. Shaheen indicated that "as a Sunni Muslim, she would not have received help from the police in Jhelum because mostly Shia people live in that town and the police force is dominated by Shias" (emphasis added).
[36] A review of the transcript indicates that Ms. Shaheen did not state that the police force was dominated by Shia Muslims in Jhelum. At page 189:
PRESIDING MEMBER: Mm-hmm. Now during the time when you lived in Pakistan and you told us that the police is usually on one side or the other, on whose side was the police, on the SSP or the TGP's?
CLAIMANT: Whosoever greases the palms of the police, police sides with that person or persons.
CLAIMANT: And I know there are many policemen who are Jaffria
PRESIDING MEMBER: But for policemen bieng Jaffria, that means that they must have been Shias, right?
CLAIMANT: Yes.
[37] From my reading of Ms. Shaheen's evidence, she has asserted that the police are corrupt and that she knows that there are many police who are "Jaffria", that is, aligned with TJP or who are Shia Muslims. This is why she claimed that the police would be unable and unwilling to effectively protect her family. The Board attributed testimony to her which she did not make. Therefore, this credibility finding is patently unreasonable.
[38] Secondly, the Board's conclusion related to the nature of the SSP and the Applicants' description of their husband/father's involvement in this organization is also patently unreasonable.
[39] The Board states that the Applicants testified that Mumtaz Khan was involved with charitable and financial aspects of the SSP for social and benevolent purposes. The Board concluded that this was a "distorted picture" of the SSP, as the documentary evidence did not demonstrate that the SSP had a "social and benevolent aspect within their organization". The Board acknowledged, at page four of its reasons, that it was "conceivable that in the Pakistani context, a wife and children might not know about the husband's dealings". The Board then stated that it was the evidence of Ms. Shaheen and her daughter that they knew the nature of their husband/father's involvement in the SSP very well. From that it drew an adverse credibility finding.
[40] The transcript of the Board's hearing reveals that the Applicants were not questioned as to the nature of Mumtaz Khan's involvement in the SSP. The Board in its reasons, therefore, must be referring to the testimony of the Applicants at the previous Board hearing. The transcript of this previous hearing, and other evidence that was before the previous Board, formed part of the record before the Board and has been filed with the Court in this proceeding, by Order of Justice Noël dated November 6, 2003.
[41] At pages 48-49 of the transcript of the previous Board's hearing, the following exchange took place between the principal Applicant and the Refugee Claims Officer ("RCO"):
RCO: Well, so far we have then that your husband tried to help orphans and provided free education and he tried to recruit people into the Sipah-i-Sahaba. Did he do anything else that would have incurred the wrath of the Jaffria group?
CLAIMANT: All the activities, internal activities are not being told by the members of Sipah-i-Sahaba to their wives.
RCO: Well, a short while ago you indicated that whatever your husband was doing for Sipah-i-Sahaba was known to you as well.
Are you saying now that your husband may have been doing things that you didn't know about?
CLAIMANT: I knew that he was a member of Sipah-i-Sahaba, on such and such day they held meetings and on such and such day he stayed there- he stayed for the night. Whatever deliberations were being done in the meetings, they were not told to me.
RCO: Well, why then did you indicate that whatever your husband was doing for the Sipah-i-Sahaba was known to you as well?
CLAIMANT: I knew when he was going, when he was coming back, where he was going, at what time he will come back. He would inform me before going that I'm going to such and such a place at what time I will come back. And this information was sufficient for me.
[42] Further, at pages 59-60 of the transcript of the previous Board hearing, the following exchange occurred between the principal Applicant and her counsel:
COUNSEL: Okay. You also mentioned that you knew about your husband's activities in that group.
CLAIMANT: I have already told I knew where he had gone, at what time he will come back and today where he had to go. Beyond this I never asked for the details.
COUNSEL: Did you ever know that- ever, that your husband engaged in activities which were violent?
CLAIMANT: He never told me.
COUNSEL: If he had engaged in those activities, would he have told you?
CLAIMANT: No.
[43] I find that the Board misinterpreted the Applicants' testimony about the nature of the SSP and Mumtaz Khan's involvement in this group. Ms. Shaheen explained that she did not know the details of her husband's activities in the SSP, and that he had never told her about being involved in violent activities. She also noted that the wives of SSP members were not told about "internal activities". Her testimony that she did not know the exact nature of her husband's involvement is not in contradiction to the documentary evidence that the SSP is an organization that often engages in violence.
[44] As held in Zhou, supra, the Board is entitled to prefer the documentary evidence to that of an applicant, however, it must provide clear reasons for so doing, as per Okeyere-Akosah, supra. In the present case, the Board's finding that the Applicants presented a "distorted picture" of their husband's involvement in the SSP is without foundation.
[45] Concerning the Board's treatment of the SSP admission form, I find that the Board did not err in this regard. The Applicants submitted an admission from the SSP, which they claimed was signed by their husband/father. The Board decided to prefer the documentary evidence to that of the Applicants and declined to give this evidence any weight. The Applicants argue that the Board mischaracterized their evidence, when it stated, at page three of its reasons, that they "felt compelled to submit the admission form from the SSP at the hearing". However, this quote must be taken in context. The Board made this statement in order to point out that the Applicants knew that they had to submit evidence to support their claim, and that they had failed to demonstrate that the nature of the SSP was as they had described it.
[46] Third, the Board's finding that since the kidnapping of the husband and son was not found in the documentary evidence, then there was good reason to doubt the truthfulness of the Applicants' claim can also not be supported by the evidence before it. I agree with the Applicants that it is insufficient for a Board to displace the Maldonado, supra, principle simply by finding the Applicants non-credible because their allegations do not appear in any third party, documentary report.
[47] As a secondary reason for doubting the Applicants about the kidnappings, the Board discredited the First Information Reports, documents submitted by the Applicants that purported to be a registration of the kidnappings with the police. The Board found that fraudulent documentation in Pakistan, including First Information Reports, are easily obtainable, and that this was further reason to doubt the Applicants' allegations. However, the Board's primary reason for doubting the Applicants' account of the kidnappings was because these kidnappings were not mentioned in any third party, documentary source.
[48] I am not persuaded by the Applicants' submission that the Board erred in its analysis pursuant to section 2(3) of the former Act. The Board referred to relevant jurisprudence and clearly considered this issue in a coherent fashion.
[49] Finally, I note that the Applicants have alleged that the Board did not reconsider their claims in good faith or in accordance with this Court's June 18, 2001 directions. This submission is lacking in merit. There is no evidence that the Board conducted itself in bad faith or failed to understand and apply this Court's judgment of June 18, 2001.
[50] This application for judicial review is allowed and the Applicants' claims for Convention refugee status is returned to a different Board for consideration. There is no question for certification.
ORDER
THIS COURT ORDERS that the application is allowed, the decision of the Convention Refugee Determination Division of March 12, 2002 is set aside and the matter is remitted for redetermination by a differently constituted Board.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1720-02
STYLE OF CAUSE: NIGHAT SHAHEEN, SABA MUMTAZ, NABEEL MUMTAZ, NIDA MUMTAZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 16, 2003
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: DECEMBER 17, 2003
APPEARANCES BY: Ms. Helen Turner
FOR APPLICANTS
Mr. Martin Anderson
FOR RESPONDENT
SOLICITORS OF RECORD: Helen Turner
Barrister & Solicitor
Toronto, Ontario
FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20031217
Docket: IMM-1720-02
BETWEEN:
NIGHAT SHAHEEN, SABA MUMTAZ, NABEEL MUMTAZ, NIDA MUMTAZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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