Date: 20040831
Docket: IMM-6982-03
Citation: 2004 FC 1186
Ottawa, Ontario, this 31st day of August, 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
ZABIT HUSSAIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is a 35 year old Shia Muslim from Pakistan. Prior to coming to Canada, he claims to have been an executive member of Tehreek-e-Fiqq Jaferia (TFJ), a Shia religious party which is now known to have links to terrorist organisations, and Anjuman Imamia Asna Ashria (AIAA), a community organisation which is involved in the promotion of democratic rights among Shia citizens of Pakistan.
[2] As a result of this involvement, he claims that he was attacked numerous times by the Sipah-e-Sahaba (SSP), including during a 1999 shooting incident. He also claims that the SSP hired a renowned assassin, known as Zaka, to kill him. After Zaka's assassination attempt failed, the applicant claims that he fled to Karachi. However, here he also alleges that he was followed and harassed and that he was injured in July 2001 following an attack upon his mosque. After the attack, he claims that he was advised by religious leaders that he was no longer safe in Pakistan, and as a result, fled to Canada where he claimed refugee status.
[3] In Reasons dated August 1st, 2003, the Refugee Protection Division rejected the Applicant's claim. It concluded that he did not fit the profile of a Shia at risk of persecution in Pakistan. In addition, it found many aspects of his story not to be credible or plausible. Finally, it concluded that, as the government had taken recent steps such as banning the SSP, adequate state protection existed in Pakistan. The Applicant now seeks judicial review of this decision.
ISSUES
[4] The Applicant essentially raises three issues:
1. Did the Board err in concluding that the Applicant did not fit the profile of an individual at risk of persecution?
2. Did the Board err in drawing negative credibility findings as a result of inconsistencies between the Applicant's Personal Information Form (PIF) and testimony?
3. Did the Panel err in concluding that adequate state protection existed?
STANDARD OF REVIEW
[5] The Applicant is challenging findings of fact and credibility, the appropriate standard of review of which is patent unreasonableness (Sivasamboo v. Canada (M.C.I.), 1 F.C. 741; Conkova v. Canada (M.C.I.), [2000] F.C.J. No. 300).
ANALYSIS
Issue 1 : Did the Board err in concluding that the Applicant did not fit the profile of an individual at risk of persecution?
[6] The Applicant submits that the Board erred in concluding that he was not at risk because he was neither a professional nor a prominent Shia leader. It is submitted that he was at risk as a local leader. In addition, it is submitted that the documentary evidence, including a report from Amnesty International, established that a wide range of Shia society is currently at risk of persecution, including non professionals such as the Applicant.
[7] At page 6 of the Reasons, the Board concluded that the Applicant did not fit the profile of an individual at risk of persecution because he had stated that his role within the Tehreek-e-Fiqa Jaferia (TJP) and AIAA was largely administrative and because the documentary evidence suggested that it was largely only leaders and professionals who were targeted by the SSP. The Applicant misunderstands the Board's finding; it did not conclude that it was only leaders and professionals who were being targeted, but merely that the Applicant did not fit the profile of an individual likely to be targeted.
[8] This does not constitute an error. Based upon the Applicant's own statements regarding his political involvement and the evidence on the record, including the Amnesty International Report (referred to in a footnote at page 6 of the Reasons), it was open to the Board to conclude that the Applicant was not likely to come to the specific attention of the SSP.
Issue 2: Did the RPD err in drawing negative credibility findings as a result of inconsistencies between the Applicant's PIF and testimony?
[9] The Applicant submits that the Board erred in drawing negative inference from his failure to mention the AIAA in his PIF. It is submitted that, during the hearing, he reasonably explained that his lawyer had omitted to include details about his involvement in his PIF and that this did not come to his attention until he was preparing for the hearing. In this regard, it is also submitted that the Board had no evidence that he concocted his AIAA involvement in order to downplay his role with the TJP. Finally, the Applicant argues that, during the hearing, he merely provided additional details with regards to Zaka which came to light after he had submitted his PIF.
[10] The Board is entitled to draw negative inferences from the omission of important aspects of a claimant's story in his PIF (Basseghi v. Canada (M.C.I.) [1994] F.C.J. No. 1867). In this case, the Applicant's omissions related to central aspects of his story: namely his involvement in the AIAA and the attempts made on his life by the assassin known as Zaka. Therefore, it was reasonable for the Board to have expected that these details would have been included in his narrative and to draw a negative inference from their omission.
[11] While the uncontradicted testimony of an applicant is to be believed (Maldonado v. Canada (M.E.I.), [1980] 2 F.C. 302), the Board may is not obliged to accept testimony when valid Reasons exist to doubt its truthfulness (Goshi v. Canada (M.C.I.), [2000] F.C.J. No. 735). In this case, the Applicant's knowledge of English and his background constituted a valid reason to doubt his explanation regarding the AIAA omission in his PIF. The Board was, therefore, entitled to conclude that the Applicant had invented the AIAA involvement solely in order to further his refugee claim. In addition, it was not patently unreasonable for the Board to conclude that the Applicant's testimony regarding Zaka was contrived and implausible.
Issue 3: Did the Panel err in concluding that adequate state protection existed?
[12] The Applicant submits that the Panel misunderstood and relied selectively on the evidence related to state protection. It is submitted that the weight of the evidence establishes that crackdowns on Sunni military groups have been unsuccessful and that violence against Shias has continued to occur. In addition, it is submitted that the panel erred in concluding that the police would have been able to protect the Applicant in the past given that it has recently taken action against Sunni paramilitary organisations.
[13] In the absence of clear and persuasive evidence to the contrary, the Board is presumed to have considered all of the evidence on the record (Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317). Moreover, the Board is entitled to weigh the evidence and draw the inferences and conclusions which it considers appropriate (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315; Lubeya v. Canada (M.C.I.), [2000] F.C. J. No. 2009).
[14] In this case the evidence is mixed but it cannot be said that the Board failed to consider evidence or that the conclusions which it drew were patently unreasonable. The evidence indicated that, although the state had not always been successful in preventing sectarian violence, adequate state protection would be available to the Applicant if he returned to Pakistan. As has been observed in Conkova v. MCI [2000] F.C.J. No. 300:
The issue here is the CRDD's assessment of the evidence, a matter clearly within its mandate and its expertise. The view which the CRDD took of the evidence was one which could reasonably be taken, just as the opposing view could also reasonably be taken. The evidence, as is so often the case, is ambiguous and equivocal. Some elements support the applicants' position, others undermine it. The CRDD's task is to consider all the elements (which does not require that specific mention be made of every piece of evidence which is reviewed) to weigh it and to come to a conclusion. As long as its conclusion is not one which is wrong on its face, it is not patently unreasonable. Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748, (1996) 144 D.L.R. (4th) 1 In this case, the conclusion to which the CRDD arrived is not wrong on its face, even though others might come to a different conclusion. There is no reason for this Court to intervene.
[15] The observations apply equally in this case.
CONCLUSION
[16] For the foregoing reasons this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-6982-03
STYLE OF CAUSE: ZABIT HUSSAIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, AUGUST 25, 2004
REASONS FOR ORDER BY: von FINCKENSTEIN J.
DATED: August 31, 2004
APPEARANCES BY: Mr. Andrew Brouwer
Mr. Hadayt Nazami
For the Applicant
Mr. Tamrat Gebeyehu
For the Respondent
SOLICITORS OF RECORD: Jackman & Associates
Barristers & Solicitors
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20040825
Docket: IMM-6982-03
BETWEEN:
ZABIT HUSSAIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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