Date: 20050118
Docket: IMM-2770-04
Citation: 2005 FC 37
Ottawa, Ontario, the 18th day of January 2005
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
QAMAR NIGAR SHERWANI
and FAKHER KHAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] First instance decisions are not to be dissected by a "scalpel" but rather examined as a whole. Thus, fact-driven credibility cases do not warrant the interference of this Court unless the findings of the trier of fact are patently unreasonable; and, the word, "findings", refers to conclusions reached, in light of the complete evidence, read in context.
JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (IRPA) of the decision of the Immigration and Refugee Board, Refugee Protection Division (Board) which, on March 2, 2004, dismissed the Applicants' claim for "refugee" status pursuant to section 96 and also that of a "person in need of protection" pursuant to subsection 97(1) of IRPA.
BACKGROUND
[3] Pakistani citizens, the Applicants, Mrs. Qamar Nigar Sherwani and her daughter, Fakher Khan, allege a well-founded fear of persecution based on their religious beliefs.
[4] In March 2001, Mrs. Sherwani and her husband participated in a protest against the killing of Shias. During the protest, her husband publicly condemned the murders. On September 18, 2001, her husband arranged a Majlis at a member's home. That evening, shots were fired outside their home by Sipah-e-Sahaba Pakistan (SSP). Mrs. Sherwani, her husband and her two sons were beaten. The police refused to register a complaint.
[5] Miss Khan befriended Aisha, the daughter of the local Sunni Imam. On January 18, 2002, Aisha attended a Majlis at Mrs. Sherwani's home. On January 25, 2002, Aisha's father and SSP persons went to Mrs. Sherwani's home. There, her husband and she were physically abused. Due to the abuse, Mrs. Sherwani's husband and her two sons went into hiding.
[6] On February 10, 2002, SSP goons went to Mrs. Sherwani's home. They threatened to abduct Miss Khan whom, they said, had "deflected" Aisha. Mrs. Sherwani and her daughter went into hiding. The SSP threatened to punish them for corrupting a Sunni. As a result, Mrs. Sherwani and her daughter fled to Canada on February 28, 2002.
[7] While in Canada, Mrs. Sherwani learned that her husband and her sons were hiding in Karachi and then in Dubai. She was also informed that her home and also that of her brother, had been raided by police, who wanted to arrest both her and her husband. Warrants of arrest were issued against both of them, on March 29, 2002.
DECISION UNDER REVIEW
[8] The Board found implausibilities, inconsistencies and discrepancies in the Applicants' testimony and documentary evidence. The explanations provided for these deficiencies were not held to be satisfactory by the Board.
ISSUE
[9] 1. Was it patently unreasonable for the Board to make the factual findings that it did?
ANALYSIS
1. Was it patently unreasonable for the Board to make the factual findings that it did?
[10] The Court accords the Refugee Division a high level of deference on findings of fact, which include matters of credibility. Only when these findings are patently unreasonable will they trigger the intervention of this Court [Chen v. Canada (Minister of Citizenship and Immigration)].
[11] The Board gave a number of reasons why it decided to reject the asylum claim. Firstly, Mrs. Sherwani testified that a First Information Report (FIR) was registered against her on March 1, 2002 and that on March 29, 2002, a warrant of arrest had been registered against her. There is however no mention of an FIR in her narrative nor in her lawyer's letter. Nor was she able to give details as to the charges. Miss Khan testified that her maternal uncle tried to get the FIR in Pakistan but was unable to do so. The Board noted that on the basis of documentation specified, FIRs can be obtained, in certain circumstances, from the authorities. Both Ms. Sherwani and Miss Khan appeared to be uncertain regarding the existence of a FIR having been registered against Mrs. Sherwani. Based on their testimony, the Board did not believe that an FIR was ever registered against Mrs. Sherwani.
[12] Secondly, arrest warrants had allegedly been issued against Mrs. Sherwani and her husband on March 29, 2002. Attested copies of the warrants sent to Mrs. Sherwani on March 14, 2002 by her lawyer in Pakistan were submitted by the Applicants prior to the hearing. During the hearing, the Applicant produced what was identified as a copy of the original arrest warrant issued against Mrs. Sherwani's husband; is however no attestation was demonstrated in that record. The Board did not find it plausible that the authorities in Pakistan would issue a copy of the original arrest warrant without indicating on the document that it was, in fact, a copy of the original. The Board, therefore, concluded that the husband's arrest warrant was fraudulent and that, consequently, Mrs. Sherwani's arrest warrant could not be considered authentic either. The Board also took into account documentary evidence to the effect that fraudulent documents can easily be obtained in Pakistan.
[13] Thirdly, the Board did not find it plausible that Mrs. Sherwani and her daughter, who were at the center of the alleged conversion of Aisha, would not have gone into hiding together with Mrs. Sherwani's husband and her sons on January 25, 2002. Mrs. Sherwani had testified that, on that date, she, her husband, her daughter had been physically abused, which suggests that Mrs. Sherwani was targeted.
[14] Fourthly, the Board did not find it plausible that the SSP, who had been banned by the military authorities in January 2002, would be in collusion with the police against Mrs. Sherwani and her daughter in February 2002.
[15] Fifthly, given the history of ethnic strife in Pakistan, the Board did not find it plausible that Mrs. Sherwani and her family would risk having Aisha, a Sunni, the daughter of a Sunni Imam, participate in a Majlis at their home.
[16] Having listed the five factual findings that led the Board to reject Mrs. Sherwani's and Miss Khan's claim, the Court reiterates the general principle that questions regarding the weight of evidence and credibility are within the jurisdiction of the Board. It is the Board that is in the best position to assess the credibility of a refugee claimant, and it should only be overturned in the clearest of cases [Aguebor v. Canada (Minister of Citizenship and Immigration)] on the matters as specified above. Also, refugee claimants cannot attempt to justify before this Court, parts of their testimony or the documents which they presented to the Board. The Board already examined and rejected the explanations as not credible or implausible [Muthuthevar v. Canada (Minister of Citizenship and Immigration)]. In sum, though this Court might have arrived at different conclusions than the Board with respect to certain of the aspects. Nevertheless, based on a significant number of questionable points in regard to credibility as described by the Board, this Court cannot conclude that the Board's decision was patently unreasonable and therefore it will not intervene.
[17] One last point needs to be addressed. As underlined by the Applicants, the Board confused the Pakistan Muslim League (PML) with the Sipah-e-Sahaba (SSP) in its summary of the Applicants' allegations. It also made four other minor factual errors in the same summary (the present hiding location of Mrs. Sherwani's husband and sons, the number of sons beaten on a certain day, the location where Mrs. Sherwani and her daughter hid before leaving for Canada, the presence or lack thereof of the SSP at a certain meeting in Mrs. Sherwani's home). Nevertheless, the Court finds errors of details do not affect the overall conclusions drawn by the Board, in respect to the alleged narrative, which relates to the implausibility of the narrative in and of itself, and the lack of probative value of the documentary evidence as submitted in support of the claim. It is trite law that the Court should not engage in a microscopic examination of the Board's reasons and only material errors would justify the intervention of the Court [Miranda v. Canada (Minister of Employment and Immigration), Singh v. Canada (Minister of Citizenship and Immigration), Mardones v. Canada (Minister of Citizenship and Immigration)]. In this case, the errors identified are not material errors which would have a determining effect and would be sufficient to overturn the Board's decision.
CONCLUSION
[18] For these reasons, the Court answers the question at issue in the negative. Consequently, the application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that this application for judicial review be dismissed. There is no question to be certified.
"Michel M.J. Shore"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2770-04
STYLE OF CAUSE: QAMAR NIGAR SHERWANI
and FAKHER KHAN
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 13, 2005
REASONS FOR
ORDER AND ORDER: The Honourable Mr. Justice Shore
DATE OF REASONS FOR
ORDER AND ORDER: January 18, 2005
APPEARANCES:
Me Jack B. Rosenfeld FOR THE APPLICANTS
Me Lisa Maziade FOR THE RESPONDENT
SOLICITORS OF RECORD:
JACK B. ROSENFELD FOR THE APPLICANTS
Montreal (Quebec)
JOHN H. SIMS FOR THE RESPONDENT
Deputy Attorney General of Canada
Miranda v. Canada (Minister of Employment and Immigration), (1993) 63 F.T.R. 81 (F.C.T.D.), [1993] F.C.J. No. 437 (QL).
(1999) 174 D.L.R. (4th) 165 at paragraph 5 (F.C.A.).
Exhibit A-3, Montreal Regional Binder, Section 10.3, PAK 29687.E, 13 July 99.
(1993) 160 N.R. 315, [1993] F.C.J. No. 732 (F.C.A.) (QL) at paragraph 4.
[1996] F.C.J. No 207 at paragraph 7 (F.C.T.D.) (QL).
2002 FCT 1272, [2002] F.C.J. No. 1724 (QL) at paragraph 27.
[1997] F.C.J. No 351 (F.C.T.D.) (QL) at paragraph 4.
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