Date: 20040908
Docket: IMM-6590-03
Citation: 2004 FC 1223
Ottawa, Ontario, September 8, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
GONDAL AZHAR, LUBNA AZHAR,
ADINA AZHAR, NOOR FATIMA AZHAR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision rendered by the Refugee Protection Division of the Immigration and Refugee Board (Board), dated August 5th, 2003. In that decision, the Board found the Applicants not to be Convention refugees nor persons in need of protection. As the asylum claim is based on the story of one Applicant, Gondal Azhar, the Court will refer to the "Applicant" to designate all Applicants in this case.
ISSUES
[2] The question at issue is as follows:
1. Was the Board's findings on credibility evidence submitted patently unreasonable?
[3] For the reasons below, I answer the question in the affirmative and will allow the application.
FACTS
[4] The Applicant, Gondal Azhar, his wife, Lubna Azhar and their children are citizens of Pakistan. The Applicant alleges a well-founded fear of persecution because of his Shia faith.
[5] The alleged facts were described by the Board as follows. The Applicant was an executive member of his local Imambargah. The extremist Sunni group, the Sipah-e Sahaba Pakistan (SPP), settled in the Applicant's area a few years ago. In June 1997, the Applicant was accompanied by other Shias to participate in a religious gathering at his residence. He and his guests were physically and verbally abused by SSP members. He was also threatened with death. He was verbally abused by the police when he attempted to lodge a complaint. He sent a letter to the Deputy Superintendent of the Police. It was to no avail.
[6] In March 1998, he along with his farm workers were again assaulted by the SSP. A report was made at the police but nothing came out of that. Thereafter, the SSP kept harassing him and his family whenever they would see them.
[7] On August 25, 2001, the Applicant's motorbike was burned down in front of the Imambargah. The police refused to register his complaint and again, they abused him verbally.
[8] On December 10, 2001, the SSP fired shots at the Applicant's house. The police refused to come. The following day, the Applicant submitted a written complaint to the Deputy Commissioner after he was prevented to meet him. The same evening, while he was out, the police came to arrest him for insulting the Sunni faith. The SSP called to utter death threats against him. The Applicant stayed in hiding in Lahore. He was joined by his wife and children. On December 24, 2001, they arrived in Canada. They claimed refugee status the same day.
CONTESTED DECISION
[9] The Board concluded that the Applicant failed to provide credible evidence which would indicate that he faced a risk should he return to Pakistan.
ANALYSIS
[10] The Applicant seeks to introduce new evidence that was not before the Board: two letters from lawyers stating that First Information Reports (FIR) do not always include the year in the case number and a series of FIRs in other cases which do not include the year in the case number. Since this evidence was not filed before the Board, it is inadmissible at the judicial review stage (Asafov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 713 (T.D.) (QL); Majinski v. Canada (Minister of Citizenship and Immigration), 2003 FCT 628, [2003] F.C.J. No. 864 (T.D.) (QL)).
[11] The standard of review in cases involving findings of fact, including credibility, is patent unreasonableness. In other words, only if the Board erred in a patently unreasonable way will this Court intervene.
[12] The Applicant's credibility was doubted by the Board because of different elements, including alterations of biographical data on the Applicant's national identity card (NIC), a discrepancy between the Personal Information Form (PIF) and the point of entry notes taken by an immigration agent, a discrepancy between the PIF and the Applicant's testimony.
[13] Two days prior to the first hearing , the Applicant received an e-mail from immigration authorities confirming that the biographical data on his NIC had been altered. He explained that he applied personally for his card and that the altered information is confirmed by his birth certificate and his marriage certificate. He phoned his brother in Pakistan who faxed him a copy of a document from the National Database Registration Authority which confirmed the information in the altered NIC card. This information was filed at the hearing. I find patently unreasonable the conclusion of the tribunal for giving no probative value to the NIC card since the birth, marriage certificate and the fax copy received from his brother confirmed the NIC card.
[14] The point of entry notes does not indicate that the Applicant was beaten or detained. Before the Board, he submitted that he was physically abused by SSP militants in June 1997 and in March 1998. He also stated that he had been a victim of serious human rights abuses. The lack of details in the port of entry notes is not a reason to reject his testimony in its entirety. The words of Hugessen, J.A. (as he then was) in Mensah v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 1038 (C.A.) (QL) are appropriate:
This seems to us, at first blush, to be a classic case of "Catch 22", from which it is impossible for the applicant to extricate himself: if he gives as few details at his hearing as at his examination under oath, his claim fails for lack of precision; if he gives more, it fails for lack of credibility.
[15] In his Personal Information Form (PIF), the Applicant stated that the SSP extremists assaulted him right in front of his home. At the hearing however, the Applicant situated the incident half a block away, on the right side of his home. When confronted, the Applicant again mentioned that the incident occurred half a block away. This discrepancy was also noted by the tribunal as a lack of credibility. I find that this is a microscopic analysis of the evidence which is unjustified in this case.
[16] The patently unreasonable errors made by the Board warrant the intervention of this Court. Therefore, the application for judicial review is allowed.
[17] The parties had the opportunity to submit a serious question of general importance and declined to do so. No such question arises here.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and that a newly constituted panel redetermine the claim. No question is certified.
"Michel Beaudry"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6590-03
STYLE OF CAUSE: GONDAL AZHAR, LUBNA AZHAR,
ADINA AZHAR, NOOR FATIMA
AZHAR
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: September 1, 2004
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Beaudry
DATED: September 8, 2004
APPEARANCES:
Stewart Istvanffy FOR APPLICANT
Daniel Latulippe FOR RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy FOR APPLICANT
Montreal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec
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