Date: 20030923
Docket: IMM-4324-02
Citation: 2003 FC 1066
Between:
TASADDAQ MUSHTAQ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated August 19, 2002, wherein the Board found the applicant not to be a Convention refugee as defined in section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") or a "person in need of protection" as defined in section 97 of the Act.
[2] The applicant is a citizen of Pakistan. He alleges a well-founded fear of persecution because of his political opinions. In addition, he claims to be in danger of torture and at risk of loss of life or being subjected to cruel and unusual treatment or punishment in Pakistan.
[3] The Board's decision was based on a finding of lack of credibility, with which the applicant takes issue.
[4] Having read the transcript of the hearing and reviewed the evidence, I am satisfied, in spite of Mrs. Richard's able presentation, that the Board in this case acted unreasonably in reaching its negative credibility finding.
[5] The applicant argues that the Board placed too high an emphasis on his capacity to answer questions pertaining to political issues involving Pakistan's history. From the transcript, it is evident that the applicant was able to answer many of the questions posed to him by the Board with respect to the political history of the country, but that he did not know the answers to other, more specific, questions. The Board relied heavily on this inability in reaching its negative credibility finding. However, pages 238 to 242 of the transcript reveal the Board's zeal in firing precise and overly detailed questions at the applicant, and its impatience with his inability to answer them. The amount of precision required by the Board, and the extent of political knowledge which it expected the applicant to have, went beyond the "basic facts" to which the respondent refers and were unreasonable in the context of his claim. The Board did not consider the applicant's particular circumstances or the fact that he worked for the Pakistan People's Party (the "PPP") only in his local village and not on a national scale.
[6] With respect to the inconsistencies between the Port of Entry ("POE") notes and the applicant's testimony, the Board again dwelt on details and not on the substance of the claim. On page 3 of the Board's reasons, it states that the applicant testified that he had been detained for two days after his arrest on March 23, 2001, whereas his POE notes indicate that he was detained for only one day. The Board then misquotes the transcript and states that the applicant affirmed that during his interview he referred to only one day of detention: that he "did not mention two days". In fact, at page 244 of the transcript, the applicant explains, "Sir, there I did mention two (2) days. I think they made a mistake while writing." The Board's own misconstruction of the evidence influenced its credibility finding.
[7] The Board raised a second inconsistency, namely, that in the POE notes it states that the applicant was arrested for trying to organize a march against the Pakistan Muslim League ("PML") and the police, whereas he testified that he was arrested because of his criticism of the PML and the police. The testimony on this point is unclear, and it was not unreasonable for the Board to find that an inconsistency existed, however, the inconsistency is minor and insufficient by itself to call into question the applicant's credibility (see, for example, Attakora v. Canada (M.E.I.) (1989), 99 N.R. 168).
[8] The Board also raised an inconsistency with respect to the applicant's description of the attack on his farm. The applicant at first testified that the armed men beat his employees, and then he said that they threatened and harassed his employees and beat one of them. He then stated that they had slapped one of his employees. The Board took issue with the term, pointing out that a slap is not a beating. Because of this perceived inconsistency, the Board found that the attack did not happen at all. However, the applicant clearly indicated at page 247 that the "slap is called beating, in Punjabi", therefore, there was no inconsistency from his point of view. The Board failed to mention this explanation in its reasons, and went on to question the applicant's use of the term "beating" in the entirety of his claim.
[9] I am in agreement with the applicant when he states that he clearly explained that Choudhry Younas and Mohammad Younas were the same person. This is evident at page 251 of the transcript. Given that the applicant also gave the complete and correct names of all other persons named in the First Information Report ("FIR"), it was unreasonable for the Board to give no weight to the FIR simply because of the easily explicable discrepancy in one name.
[10] With respect to the applicant's arrival at Dorval airport, this is another instance of the Board being unreasonable. It is clearly penalizing the applicant for not remembering exactly at what time his airplane arrived, and disbelieving him based on its own general knowledge of intercontinental flights rather than on evidence of the flight schedule for the day in question. The precise time of the flight's arrival is in no way central to the applicant's claim.
[11] Throughout the hearing and in its reasons, the Board concentrated on minute details in the applicant's testimony and neglected to address the substance of his claim. This runs contrary to the Federal Court of Appeal's decision in Attakora, supra, where the Court states as follows at page 169:
I have mentioned the Board's zeal to find instances of contradiction in the applicant's testimony. While the Board's task is a difficult one, it should not be over-vigilant in its microscopic examination of the evidence of persons who, like the present applicant, testify through an interpreter and tell tales of horror in whose objective reality there is reason to believe.
[12] For this reason, the Board's negative credibility finding is seriously flawed and patently unreasonable. Therefore, the application for judicial review is granted, and the matter sent back for reconsideration before a differently-constituted panel.
JUDGE
OTTAWA, ONTARIO
September 23, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4324-02
STYLE OF CAUSE: TASADDAQ MUSHTAQ 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:
Mr. Viken G. Artinian FOR THE APPLICANT
Mr. Sébastien Dasylva
Mrs. Zoé Richard (articling student) FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Viken G. Artinian FOR THE APPLICANT
Montréal, Quebec
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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