Date: 20041027
Docket: IMM-445-04
Citation: 2004 FC 1489
Ottawa, Ontario, October 27, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
KHAWAR HAFEEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated December 23, 2003, where the Board determined that the applicant, a citizen of Pakistan, was not a Convention refugee or a person in need of protection.
ISSUE
[2] Did the Board commit an error in the assessment of the refugee claim?
[3] For the following reasons, I answer this question in the negative and will dismiss this application.
BACKGROUND
[4] The applicant was born in 1964 in Rawalpindi, Punjab, Pakistan and is a Shia Muslim. He alleges a reasonable fear for his life because of his religious activities. He submits that since he has already been beaten by members of the Sipah-e-Sahaba (SSP), an anti-Shia organization, he would still be persecuted if he goes back to his country.
CONTESTED DECISION
[5] After examining all the evidence presented, the Board found the applicant's testimony not credible and his behaviour inconsistent with his alleged subjective fear of persecution.
[6] The Board found that the applicant failed to testify in a direct and spontaneous manner. According to the Board, the applicant's responses were often arduous and repetitious. The applicant was unable to provide the Board with convincing explanations as to why he failed to indicate in his PIF that he feared the police and that he had a warrant issued against him. Moreover, the Board found it implausible that the applicant was unable to recall properly the injuries he sustained during the attacks.
[7] Furthermore, the Board found that the applicant did not give a reasonable explanation regarding the discrepancy between the arrest warrant and the letter written by his lawyer in Pakistan. Since it could not determine which document was reliable, the Board decided to give no weight to both documents.
[8] The Board also found that the applicant's behaviour was not compatible with the behaviour of someone who has a subjective fear of persecution. In fact, after the applicant left his country, he stayed in the U.S. for a period of 16 months before claiming asylum in Canada. Finally, the Board determined that the applicant did not establish a well-founded objective fear of persecution.
ANALYSIS
[9] The applicant alleges that the Board did not take into consideration his written submission. The Court rejects his argument because it is merely based on supposition. The applicant's submission was handed in on December 22, 2003 and the Board's decision is dated December 23, 2003. The applicant did not submit any evidence that demonstrates that the Board rendered its decision without considering the applicant's submission. Therefore, the Court cannot conclude that the Board did not consider the applicant's submission before rendering its decision.
[10] It is trite law that an applicant has the onus of establishing that he meets the definition of a Convention refugee under section 96 of the Immigration and Refugee Protection Act. In order to succeed, the applicant needs to prove, on a balance of probabilities, that he has a reasonable subjective fear of persecution and that this subjective fear is objectively well-founded (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). A subjective fear of persecution is solely based on the assessment of the applicant's credibility while the objective fear is usually established by documentary evidence regarding the country conditions.
Did the Board err is assessing the applicant's subjective fear of persecution?
[11] As mentioned above, subjective fear of persecution is based exclusively on the assessment of the applicant's credibility. The standard of review in cases involving credibility findings, which is are factual issues, is patent unreasonableness.
[12] In the present case, the assessment of the applicant's subjective fear was diminished by many different things. First of all, the applicant omitted important information in his PIF particularly as to when he learned about his arrest warrant. Even though the applicant filed an amendment to his PIF on November 25, 2003 stating that such information was received from his wife when he left for the U.S., the Board found that such an omission raised doubts about his credibility. This error was recognized by the applicant but I find that it is not determinative in this case.
[13] Nevertheless, the warrant itself raised a doubt about the applicant's credibility. The alleged certified copy of the applicant's arrest warrant indicates that the warrant was issued on July 10, 2001and that the applicant was to appear in court on July 25, 2001. However, the letter from his lawyer in Pakistan states that "due to his continuous absence from the hearing at court, his arrest warrant was issued on 10/07/2001". This statement implies that the applicant was supposed to appear in Court before July 10, 2001. The applicant claimed that he was never to appear in Court before July 25, 2001. Since the applicant had no other explanation to offer regarding his lawyer's letter, the Board decided not to give weight to either of these pieces of evidence, since it could not determine which was credible. I see no reason to intervene here.
[14] The Board also indicated that the applicant never mentioned in his PIF that he feared the police. The Board pointed out that this information was also not brought up in the document filed by the immigration officer on September 23, 2002. The applicant blamed the translator and the immigration officer for not completing the documents properly.
[15] The Board noted that the applicant's testimony was vague and that he was unable to recall properly the injuries he sustained from the alleged attacks. The applicant submits that the Board made a mistake in its understanding of his testimony. He alleges that even though he was unable to verbally tell the tribunal which arm had been injured, he kept showing the left forearm. In this regard, I would like to point out that on pages 226 and 227 of the tribunal record, it is indicated that the applicant pointed to his right arm once and pointed to his left arm once and on both occasions, he stated that he could not remember which arm was injured. Therefore, I believe that the Board did not make an error in its understanding of the applicant's testimony.
[16] The applicant also alleges that the Board committed an error by not taking into consideration his low level of education. The Board did refer to the applicant's low level of education in its decision (page 5, second paragraph). Therefore, there is no reason why the Court should intervene on this point.
[17] The applicant fled his country in April 2001 to the United States with a valid visa for six months and it was not until September 5, 2002 that he claimed refugee protection in Canada. He therefore had an illegal status in the United States for approximately ten months without claiming protection. It is settled law that a delay in claiming asylum may affect the credibility of the applicant (Singh v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 613 (T.D.) (QL), paragraph 11 and Huerta v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 271 (C.A.) (QL)). In the present case, the Board was not convinced by the applicant's explanation. Therefore, it was reasonable for the Board to take this delay in consideration in its assessment of the applicant's subjective fear of persecution.
[18] The applicant states that the Board did not properly assess the documentary evidence regarding the condition in Pakistan. The assessment of weight to be given documents is a matter within the discretion of the tribunal assessing the evidence (Huang v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 178 (F.C.T.D.)). Documentary evidence shows that Shias are not systemically discriminated against and they often live in peace with Sunnis although sectarian violence still exists. The government banned extremist groups and made serious effort to offer help and protect those at risk.
[19] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court of Canada established that "absent a situation of a complete breakdown of the state apparatus, it should be assumed that the state is capable of protecting a claimant". In Villafranca v. Canada (Minister of Employment and Immigration) (1992), 18 Imm. L.R. (2d) 130 (F.C.A) at pages 132-133, the Court affirmed that state protection did not need to be perfect to conclude that protection exists. Therefore, in the present case, based on the evidence presented in front of the Board, I cannot conclude that it committed an error that warrant the Court's intervention.
[20] The parties declined the opportunity to submit serious questions of general importance. I am satisfied that none arises out of this matter. Therefore, no question will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
« Michel Beaudry »
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-445-04
STYLE OF CAUSE: KHAWAR HAFEEZ v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: October 13, 2004
REASONS FOR ORDER THE HONOURABLE
AND ORDER BY: MR. JUSTICE BEAUDRY
DATED: October 27, 2004
APPEARANCES:
Lenya Kalepdjian FOR THE APPLICANT
Edith Savard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lenya Kalepdjian
Montreal, Quebec FOR THE APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec FOR THE RESPONDENT
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