Date: 20041001
Docket: IMM-112-04
Citation: 2004 FC 1351
Ottawa, Ontario, October 1st, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
HUSSAIN MUNWAR, NASREEN THAIRA,
SHAHZADI NEELUM AND
AFZAL MOHAMMED
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This in an application for judicial review of the decision of the Refugee Protection Division of the Immigration Refugee Board (Board) dated December 11, 2003, where the Board determined that the applicants were not Convention refugees nor persons in need of protection.
ISSUES
[2] The issues are as follows:
1. Did the Board err in assessing the credibility of the applicant?
2. Did the Board err in assessing the documentary evidence provided by the applicants?
3. Did the Board err in its consideration of the objective situation in Pakistan?
[3] For the following reasons, I answer all three questions in the negative and will dismiss this application.
BACKGROUND
[4] The applicant, Hussain Munwar is a citizen of Pakistan who fears persecution by reason of his political opinion and his membership and participation in a particular political group named the Pakistan Muslim League Party (PML). His wife and two minor children are joining him in his claim.
[5] The alleged facts summarized by the Board are as follows. Mr. Munwar (the applicant) joined the PML in mid-December 1996. As such, he was involved in the 1997 election.
[6] In December 1999, following the military coup, the applicant was threatened by the military who, along with officials of the Central Revenue Board, seized documents from his office. They alleged that he was involved in corruption and embezzlement along with a PML leader, Haji Imdad Hussain.
[7] On October 11, 2000, the applicant escaped arrest by the police. However, he was arrested on November 28, 2001, while distributing anti-government posters. In April 2002, he was threatened by the military for supporting a boycott of the constitutional referendum and was arrested on April 6, 2002, for putting up anti-Musharraf banners. During his detention, he was tortured.
[8] Ten to fifteen days after his release, the military and police went to his home with the intention of, once again, taking him to the police station. However, because of his poor physical condition, the police left and threatened to return.
[9] The applicant left Pakistan on May 26, 2002. On his way to Canada, the applicant and his family transited in the United Kingdom and the United States. They stayed in the United States for approximately two weeks and arrived in Canada on June 13, 2002, where they claimed refugee protection.
CONTESTED DECISION
[10] The Board concluded that there were too many inconsistencies in the applicant's testimony to believe that he was arrested and tortured as alleged. Moreover, the Board found that the testimony of the applicant's wife also lacked credibility as she gave inconsistent facts regarding the alleged arrest and injuries.
[11] The Board gave no probative value to the Medico Legal Report submitted by the applicant given the many inconsistencies regarding the alleged arrests and injuries.
[12] Moreover, the Board gave no weight to the First Information Report (FIR) and the Arrest Warrant that had been issued against the applicant following his departure from Pakistan. The Board did not believe that it was plausible that the police in Pakistan, who has a reputation of arbitrary arrests, extrajudicial killings, custodial torture and corruption, would not have proceeded to arrest the applicant because of his medical condition.
[13] After taking into consideration all of the above, the Board concluded that the applicant did not establish his claim by credible or trustworthy evidence. The Board found that the applicants are not "Convention refugees" and that there is no evidence of "serious possibility" or "reasonable chance" that they would be in need of protection.
ANALYSIS
Did the Board err in assessing the credibility of the applicant?
[14] In the present case, the decision rendered by the Board is based on the assessment of credibility. It is because of its finding on credibility that the Board gave no probative value to the documentary evidence and the objective condition in Pakistan.
[15] The standard of review in a case involving credibility findings, is the patently unreasonable standard. In other words, even if the Court does not agree with the tribunal's decision, it will only intervene if it finds that the tribunal rendered a patently unreasonable decision. The Federal Court of Appeal has determined that the Board, as a specialized tribunal, has complete jurisdiction to determine the credibility of testimony. Accordingly, the Board is in a better position to gauge the credibility and to draw the necessary inferences. As long as the inferences drawn by the Board are not unreasonable, its findings are not open to judicial review (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.) at pages 316 and 317).
[16] The applicant's credibility was doubted by the Board for different reasons, including inconsistencies between the Personal Information Form (PIF) and his testimony regarding the alleged arrests and injuries.
[17] In Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 (T.D.) (QL), the Court, which recognized that an applicant can quite properly omit minor events from the PIF, did acknowledge that significant incidents are to be recounted. Consequently, the Court needs to establish if the contradictions and inconsistencies in the present case were significant enough to justify the Board's finding on credibility.
[18] The failure for applicants Munwar and Thaira to recall, without so many implausibilities and inconsistencies, the major events that support their claim, justifies the Board's decision on the issue of credibility. Here are examples of inconsistencies mentioned by the Board in its decision. At the port of entry, the applicant mentioned to the immigration officer that he had been arrested by the police "seven" or "several" time. In contradiction with the applicant's deposition at the port of entry, the applicant's wife explained that her husband was arrested twice. She even went further in her deposition submitting that her husband had been so badly beaten by the police following his first arrest that he was brought to the hospital. In the applicant's PIF, there was no mention of his hospitalization. However, during the hearing, it turned out that the applicant was brought to the hospital after his second arrest.
[19] Moreover, the applicant's wife gave a very confused testimony regarding who brought her husband to the hospital. Furthermore, the Board found implausible that the police decided not to proceed with the applicant's arrest because of his medical condition. Torture and harassment by the police constitute the foundation of the applicant's claim. Nevertheless, the applicant and his wife were unable to properly recall the events. Therefore, the Court concludes that the negative credibility findings are not patently unreasonable.
Did the Board err in assessing the documentary evidence provided by the applicants?
Did the Board err in its consideration of the objective situation in Pakistan?
[20] Contrary to the applicant's assertions, the Board did consider the Medico Legal Report. However, it gave this report no probative value since the underlying facts lacked credibility. On this, I adopt the reasoning of Reed J. in Danailov v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1019 (T.D.) (QL) at paragraph 2:
[...] With respect to the assessment of the doctor's evidence, to find that that opinion evidence is only as valid as the truth of the facts on which it is based, is always a valid way of evaluating opinion evidence. If the panel does not believe the underlying facts it is entirely open to it to assess the opinion evidence as it did.
[21] Moreover, the applicant and his wife escaped police arrest on October 11, 2000 and returned home thereafter. They did not experience any problems with the police between October 11, 2000 and November 28, 2001, even though he kept being an active member of the PML.
[22] He also alleged that the Board did not consider country conditions in Pakistan. Again, it is not that the Board did not take into consideration this type of evidence; it gave no weight to the country conditions since the applicant's credibility was affected by implausibilities.
[23] Concerning the visit by the police in April 2002, I do not find the Board's conclusion patently unreasonable.
[24] In this regard, Pratte J., in Shahamati v. Canada (Ministry of Employment and Immigration), [1994] F.C.J. No. 415 (F.C.A.) (QL) stated that the Board is entitled, in assessing credibility, to rely on criteria such as rationality and common sense. In a case such as the present one, the problem of credibility is related to the factual basis of the claim itself.
[25] The applicant must establish on a balance of probabilities that he meets the definition of a "Conventional Refugee". In the case at bar, the applicant explained that he was persecuted in his country by the police. However, he and his wife were both unable to reconstruct without inconsistencies the main events that led them to claim refugee status. As it was mentioned in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.), a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Therefore, if the applicant's testimony is not credible, it is reasonable to conclude that the documentary evidence cannot establish a well-founded claim by itself.
[26] There is no need for the Court's intervention in this matter.
[27] Counsel for the applicant submitted the following question for certification:
Is it correct in law to give no probative value to a detailed neuropsychological assessment by a Canadian health professional because of the lack of an interpreter when the assessment was performed, particularly when the Canadian professor takes this into account in his analysis?
[28] I analyzed the neuropsychological assessment and found numerous comments from the professor as follows:
Hussain's general cognitive ability was difficulty (sic) to ascertain because his knowledge of the English language is not at a sufficiently fluent level for formal testing. (page 0351, Tribunal Record)
Hussain's verbal reasoning abilities, as measured by the Verbal IQ, were not possible to evaluate satisfactorily as Urdu is his first language and his English though sufficient for communication purposes is not sophisticated enough to complete formal evaluation; (page 0351, Tribunal Record)
Scores to be interpreted with caution because of the lack of agility with the English language. (page 0353, Tribunal Record)
[29] Therefore, I agree with the respondent that the question does not transcend the interests of the immediate parties to the litigation. 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
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-112-04
STYLE OF CAUSE: HUSSAIN MUNWAR, NASREEN THAIRA, SHAHZADI NEELUM AND AFZAL MOHAMMED
v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: September 28, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE
MR. JUSTICE BEAUDRY
DATED: October 1, 2004
APPEARANCES:
Stewart Istvanffy FOR APPLICANT
Lisa Maziade FOR DEFENDANT
SOLICITORS OF RECORD:
Stewart Istvanffy FOR APPLICANT
Montreal, Quebec
Morris Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada
Montreal, Quebec
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