Date: 20040212
Docket: IMM-790-03
Citation: 2004 FC 226
Toronto, Ontario, February 12th, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
GULZAR AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated January 9, 2003, in which the Board found that Gulzar Ahmed was neither a Convention refugee nor a person in need of protection.
BACKGROUND
[2] Mr. Ahmed is a 38-year-old citizen of Pakistan. He belongs to a prominent Shia family in Mirpur. Mr. Ahmed has a wife and two children, all of whom still reside in Gujrat, Pakistan.
[3] In 1992, Mr. Ahmed opened a tailoring business in Gujrat under the name Gulzar Tailors. In 1996, he became active in a Shia organization called Anjuman Hussainia, the goals of which were to protect Shia rights through peaceful means. According to Mr. Ahmed, the growing popularity of the Anjuman Hussainia upset the Sipah-e-Sahaba Pakistan (the "SSP"), an extremist group of fundamentalist Sunni Muslims.
[4] In April of 2001, a new tailor shop opened near Mr. Ahmed's shop. Muhammad Munawar, the owner of the new store, was a leading SSP activist. According to Mr. Ahmed, Mr. Munawar accused him of inciting the Shia community against the Sunnis, and threatened him with harm. Mr. Ahmed says that Mr. Munawar also demanded that he move his shop elsewhere. Mr. Ahmed refused to leave, as a move to another location would have ruined his business.
[5] On May 12, 2001, Mr. Ahmed found anti-Shia graffiti on the walls of his shop. He also says that he was abused and threatened with serious consequences if he did not stop his activities. Mr. Ahmed asserts that he reported the incident to the police, but that they refused to make a report.
[6] On August 10, 2001, a customer ordered 50 uniforms for a Sunni fundamentalist religious school run by the SSP, offering Mr. Ahmed a very low price for his work. Mr. Ahmed says that this individual threatened to harm him if he did not accept the order. On August 11, 2001, Mr. Ahmed received an anonymous telephone call in which the caller threatened to kidnap Mr. Ahmed's son if he did not accept the order. Mr. Ahmed then agreed to complete the order. A few days later, two men arrived at Mr. Ahmed 's shop and took the completed uniforms. When Mr. Ahmed asked for payment, the men beat him with their fists and kicked him. Mr. Ahmed says that he reported this incident to Anjuman Hussainia's President, who reported the incident to the police. Once again, Mr. Ahmed says, the police refused to register the report.
[7] On August 20, 2001, Mr. Ahmed says that he was attacked by four SSP activists as he was returning home from his shop. He was told that this was happening in retaliation for his complaint to the police. Mr. Ahmed screamed, and the attackers fled as people gathered around. He required first aid from a local dispensary, but fearing further retaliation, did not report the incident to the police.
[8] At the request of Anjuman Hussainia's President, Mr. Ahmed participated in a membership campaign during the first week of September in 2001. As a result, Mr. Ahmed says, he was once again threatened by SSP members. This time, Mr. Ahmed went to the Deputy Police Commissioner for protection, again to no avail.
[9] On September 20, 2001, SSP members attacked Mr. Ahmed's house while he was attending a meeting. During this attack, Mr. Ahmed's home was damaged, and his parents, wife and sister were all manhandled. Four days later, Mr. Ahmed arranged a meeting of local leaders and workers to protest the SSP's terrorist actions. Mr. Ahmed says that he strongly denounced the SSP, as well as police inaction in protecting members of his community. Mr. Ahmed called on the government to enforce immediate measures to end the torture of Shia people. The police raided the meeting and arrested the Shia leaders and activists, but the applicant escaped to a neighbouring village.
[10] On September 28, 2001, Mr. Ahmed discovered that the police had raided his house. In addition, the SSP had threatened his wife and told her that if the police didn't kill him, they would.
[11] Mr. Ahmed fled Pakistan on December 5, 2001, arriving in Canada the next day. He immediately launched his refugee claim. This claim was rejected by the Board on January 9th, 2003.
THE BOARD'S DECISION
[12] The Board determined that there was no credible basis for Mr. Ahmed's claim, and found that he was neither a Convention refugee nor a person in need of protection.
[13] The Board had a number of concerns with respect to Mr. Ahmed's story. While the Board accepted Mr. Ahmed's identity, it found that his lack of travel documents adversely affected his credibility. Further, the Board found that Mr. Ahmed's testimony was not credible, as it was fraught with contradictions and weaknesses. Although Mr. Ahmed claimed that his tailoring business was the direct cause of his problems with the SSP, he could only provide business letterhead as proof of the existence of the business. Mr. Ahmed was unable to provide a registration certificate or license for the shop. The Board found this lack of evidence unacceptable.
[14] As well, the Board found that Mr. Ahmed 0contradicted himself when he initially claimed to be one of five executive members of the Anjuman Hussainia, and then later said that he was one of five junior members, stating that his duties were limited to duties such as arranging lodging and food for the Imam's visit, making the Imam's clothes, and making flags for meetings.
[15] The Board noted that a letter from the Anjuman President submitted by Mr. Ahmed that described Mr. Ahmed's problems with the SSP and the police, was "self-serving". As a consequence, the Board gave the letter little weight. The Board noted that the letter spoke only to Mr. Ahmed's problems with the SSP, and made no reference to his involvement with the Anjuman, other than to say that Mr. Ahmed was a Shia, and an active member of the Anjuman.
[16] The Board also observed that although Mr. Ahmed repeatedly stated he was targeted because he was a Shia, he testified that no one else from his Anjuman, including members of the executive of the group, had similar problems with the SSP. The Board stated that when confronted with questions, Mr. Ahmed then attributed his problems with the SSP and authorities to a protest meeting he had organized in which he delivered a strong speech denouncing the police and the SSP. When questioned as to why he gave a speech when it was not part of his duties to do so, Mr. Ahmed replied that he did it because of the repeated attacks to which he had been subjected. He also stated that although other executive members had given speeches, and some 35 people attended the protest, he was the only one to have his home raided and charges laid against him. The Board found Mr. Ahmed's explanations highly implausible.
[17] Finally, the Board chose to ascribe no probative value to a police report and arrest warrant produced by Mr. Ahmed to corroborate his story. The Board observed that there was documentary evidence that established that forged documents were readily available in Pakistan. The Board further noted that the documentary evidence demonstrated that measures had been taken to combat violence in Pakistan at the time that the arrest warrant had been issued. These measures included the actual banning of the SSP.
[18] In light of the Board's concerns with respect tothe reliability of Mr. Ahmed's testimony and the documentary evidence that he had produced in this case, the Board concluded that Mr. Ahmed's allegations of religious persecution by the SSP and by the police were not credible. The Board therefore concluded that Mr. Ahmed was neither a Convention refugee nor a person in need of protection.
ISSUES
[19] Mr. Ahmed raises three central issues on judicial review:
1. Did the Board fail to provide clear and concise examples in its written reasons to support its conclusion that Mr. Ahmed's evidence was not credible?
2. Did the Board act unreasonably and fail to have regard to the evidence before it?
3. Did the Board make a mistake of fact when it found that the government of Pakistan had banned the SSP in August of 2001, thereby making it implausible that the police would seek to arrest Mr. Ahmed for speaking out against the SSP in September of 2001?
STANDARD OF REVIEW
[20] Each of the issues identified by Mr. Ahmed relates to findings of fact made by the Board, or the Board's assessment of Mr. Ahmed's credibility. The standard of review of findings of fact and credibility is patent unreasonableness. The Court of Appeal has determined that the Board, as a specialized tribunal, has complete jurisdiction to determine the credibility of testimony. As long as the inferences drawn by the Board are not so unreasonable as to warrant intervention, its findings are not open to judicial review: Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 at 316-317.
[21] Similarly, the standard of review of findings relating to the authenticity of documents is one of patent unreasonableness. Adar v. Canada (Minister of Citizenship and Immigration),(1997) 132 F.T.R. 35
ANALYSIS
1. Did the Board fail to provide clear and concise examples in its written reasons to support its conclusion that Mr. Ahmed's evidence was not credible?
[22] Mr. Ahmed submits that the Board's finding that he was not credible because his testimony was "fraught with contradictions" and that, at times, he was "he was uncooperative and
would evade questions", is unsubstantiated, and thus meaningless. The Board did not fulfil its duty to provide clear and concise examples of when and how Mr. Ahmed contradicted himself or was uncooperative or evasive, and thus not credible. As such, Mr. Ahmed says, the Board committed a reviewable error.
[23] The respondent submits that the Board set out clear and concise reasons for its adverse credibility findings, including several examples of contradictions in Mr. Ahmed's evidence that go to the heart of his claim. For example, Mr. Ahmed claimed that his problems with the authorities were directly related to his tailoring business. At the same time, Mr. Ahmed was unable to provide any real proof such as a license or registration to show that the tailor shop even existed. The Board noted that Mr. Ahmed contradicted himself with respect to his position in the Anjuman Hussainia. Similarly, Mr. Ahmed alleged he was persecuted because he was a Shia, yet he testified that no other Shia in his Anjuman, including more high-profile executive members, had any problems with the SSP.
[24] Reasons for rejecting the credibility of a refugee claimant must be given in clear and unmistakable terms. Hilo v. M.E.I. (1991), 130 N.R. 236. In this case, the Board found that Mr. Ahmed's testimony was not credible as it was "fraught with contradictions." Although the Board does not immediately give examples of these contradictions, inconsistencies in Mr. Ahmed's testimony are identified throughout the Board's reasons. Not only were there contradictions in relation to the role that Mr. Ahmed performed within the Anjuman organization, he was also
inconsistent in his description of the duties that he says that he performed. It was reasonably open to the Board to view these contradictions as negatively affecting Mr. Ahmed's credibility. Although the Board does not elaborate on its statement that Mr. Ahmed was uncooperative, and evaded questions, I do not find this to be a reviewable error, as the reasons for the Board's decision are otherwise stated in clear and unmistakable terms.
2. Did the Board act unreasonably and fail to have regard to the evidence before it?
[25] Mr. Ahmed submits that the Board acted unreasonably and failed to have regard to the evidence before it on two separate occasions. Firstly, the Board's conclusion that he was not a member of the Anjuman Hussainia was unreasonable, given that he submitted a letter from the President confirming his membership in the organization. The Board found that this letter was 'self-serving', and chose to give it little probative value as it made no reference to Mr. Ahmed's accomplishments, but merely discussed his problems with the SSP.
[26] Mr. Ahmed submits that the letter made reference to his "accomplishments", and to his participation in the September 24, 2001 protest. In Mr. Ahmed's submission, it was unreasonable for the Board to reject the letter because it "goes on and on about the claimant's problems with the SSP." The mere fact that the evidence of a third party corroborates his assertions cannot form the basis for rejecting such evidence. As a result, Mr. Ahmed says that the Board erred when it chose to ascribe limited probative value to the President's letter.
[27] Mr. Ahmed also submits that the Board failed to have regard to the evidence before it when it concluded that his account was not credible because no other Shia from his Anjuman had similar problems with the SSP. Mr. Ahmed testified that his problems arose from the fact that his business competitor was an SSP thug. According to Mr. Ahmed, the Board ignored the main thrust of his claim when it concluded that it was implausible that Mr. Ahmed would be targeted by the SSP when no other similarly situated Shia's were targeted.
[28] At the same time, Mr. Ahmed submits that the Board misconstrued the evidence when it found that no other Anjuman members had been charged by the police as a result of the September 24, 2001 protest. Mr. Ahmed testified that the President of the Anjuman had also been arrested, and that he did not know what had happened to the other members.
[29] The respondent submits that the letter provided by Mr. Ahmed makes general and unsubstantiated allegations about Mr. Ahmed's problems with the SSP. Accordingly, it was open to the Board to deem the letter to be self-serving. Contrary to Mr. Ahmed's submissions, the letter's reference to his alleged participation in the September 24, 2001 protest is not sufficient to give the letter probative value, and the Board made it clear why it did not believe that Mr. Ahmed had been involved in the protest.
[30] I do not read the Board's reasons to find that Mr. Ahmed was not even a member of the Anjuman Hussainia. Rather, the issue for the Board was the nature of Mr. Ahmed's role within the organization.
[31] With respect to letter from the President of the organization, I do not understand the Board's criticism of the letter as being "self-serving", as it is likely that any evidence submitted by an applicant will be beneficial to his or her case, and could thus be characterized as 'self-serving'. Further, the fact that the author "does go on and on about the claimant's problems with the SSP" in the letter is not necessarily a reason to mistrust the evidence.
[32] That said, although there are problems with the Board's findings regarding the evidentiary value of the letter in assessing the nature of Mr. Ahmed's involvement with the Anjuman Hussainia, these findings were not patently unreasonable. The Board noted that the letter was written long after the alleged incidents took place, and made no reference to any of Mr. Ahmed's accomplishments or specific responsibilities within the Anjuman organization. Further, the Board's negative credibility finding regarding Mr. Ahmed's problems with the SSP did not hinge solely on this letter. The Board questioned several aspects of his claim, including the very existence of a tailor shop, and the extent of Mr. Ahmed's involvement in the rally. In these circumstances, it was not patently unreasonable for the Board to view this letter as being of little probative value.
[33] As to Mr. Ahmed's assertion that the Board failed to have regard to the evidence before it when it concluded that his account was not credible because no other Shia from his Anjuman had similar problems with the SSP, Mr. Ahmed provided conflicting explanations as to the reasons why he was targeted by the SSP. Given that Mr. Ahmed claimed to have been a relatively minor player in the Anjuman organization, it was reasonably open to the Board to question why Mr. Ahmed experienced much more trouble with both the SSP and the police than did more senior members of the group. There is enough confusion surrounding this issue that I find it was not patently unreasonable for the Board to question Mr. Ahmed's truthfulness on these points.
3. Did the Board make a mistake of fact when it found that the government of Pakistan had banned the SSP in August of 2001, thereby making it implausible that the police would seek to arrest the applicant for speaking out against the SSP in September of 2001?
[34] Two issues arise in relation to this question. One is the whether the Board found that the SSP had been banned by the government prior to the protest meeting, thus rendering it implausible that the authorities would issue an arrest warrant against Mr. Ahmed in relation to his participation in a protest against the SSP. The second issue relates to the Board's treatment of a letter from Mr. Ahmed's lawyer in Pakistan that confirmed the existence of a police report ( or 'FIR') and warrant for Mr. Ahmed's arrest, both arising out of his participation in the protest.
[35] On the first issue, although the reasons of the Board are not entirely clear, it appears that the Board's finding as to the implausibility of a warrant being issued for Mr. Ahmed's arrest in September of 2001, for his participation in the protest against the SSP, was not based upon a general understanding of the changing political climate, as counsel for the respondent suggested. While the Board does not say precisely when it understood the ban to have been put in place, the reasons of the Board make specific reference to the fact that the SSP had been banned by the government as a basis for its finding of implausibility. In this regard it appears that the Board misconstrued the evidence, as the documentary evidence before the Board indicates that the government ban on the SSP was not put into place until January of 2002.
[36] As a result, it was not necessarily implausible for Mr. Ahmed to have been arrested for protesting against a banned group, as the SSP were not a banned group at the time of the alleged incident. On its own, this error may not have warranted the Board's decision being set aside. However, this error is compounded by the Board's treatment of the letter from Mr. Ahmed's lawyer in Pakistan
[37] The Board makes no mention of this letter in its decision. If authentic, the letter amounted to independent corroboration of key aspects of Mr. Ahmed's story. Citing the decision of the Supreme Court of Canada in [1973] S.C.R. 102">Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102, the respondent submits that there is no obligation on the Board to mention every document entered into evidence, and that the failure of the Board to mention a particular document does not mean that it did not take the document into account: Hassan v. Canada (Minister of Employment and Immigration), 1992, 147 N.R. 317
[38] It was certainly open to the Board to reject this evidence, but given that the evidence was central to Mr. Ahmed's claim, it was not open to the Board to disregard it without giving reasons for doing so: Cepeda-Gutierrez v. Canada (MCI) (1998), 157 F.T.R. 35 at paras. 14 - 17, Musharraf v. Canada (MCI) [2003] F.C.J. No. 852 (Q.L.).
[39] For these reasons, the application for judicial review is allowed. The matter is referred back for re-hearing before a different panel.
CERTIFICATION
[40] Neither party has suggested a question for certification, and accordingly none will be certified.
ORDER
THIS COURT ORDERS that
1. For the reasons set out above, this application is allowed, and Mr. Ahmed's refugee claim is remitted to a panel for reconsideration,
2. No serious questionof general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-790-03
STYLE OF CAUSE: GULZAR AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 10, 2004
REASONS FOR ORDER BY: MACTAVISH J.
DATED: FEBRUARY 12, 2004
APPEARANCES BY:
Mr. Michael Korman For the Applicant
Ms. Ann-Margaret Oberst For the Respondent
SOLICITORS OF RECORD:
Otis & Korman
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040212
Docket: IMM-790-03
BETWEEN:
GULZAR AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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