Date: 20040805
Docket: IMM-6673-03
Citation: 2004 FC 1076
Toronto, Ontario, August 5th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
JAWWAD AHMED, SADIA JABEEN, KHOULA JAWWAD
KHADIJAH JAWWAD, MARIAM FATIMA JAWWAD
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Jawwad Ahmed (the "principal applicant") and his wife Sadia Jabeen are citizens of Pakistan. The other applicants are their daughters aged four to six. Two were born in Oman. The youngest was born in the United States and is a citizen of that country. They seek judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), reasons dated August 7, 2003, that they were not Convention refugees or persons in need of protection. For the reasons below, I have concluded that this application must be allowed and returned to the Board for reconsideration.
[2] Mr. Ahmed claimed to have a well-founded fear of persecution at the hands of the Pakistan authorities and police due to his political opinion. His family's claim is based on their relationship to him. Mr. Ahmed was active as a student in the Mohajir Quami Movement ("MQM"). He had been arrested and detained in 1992 but was ultimately acquitted of all charges in February 1993. He left Pakistan shortly thereafter for employment in Oman as a pharmacist where he met and married his wife and they began their family. They returned to Pakistan in December 1999 and in January 2000 left for the United States where they brought an application for asylum. That was denied on the ground that they were established in a third country, Oman. They then came to Canada in July 2001 and made their claim for refugee protection in this country.
[3] The Board found some elements of Mr. Ahmed evidence not credible. It found that his actions after leaving Pakistan in 1993 were not those of a person with a well-founded subjective fear of persecution. The Board dismissed the applicants' sur place submission, based on concerns that they would be detained by the authorities and persecuted if returned to Pakistan as failed refugee claimants. The Board also rejected the applicants' claim that Mr. Ahmed's experiences in 1992-93 were so appalling as to require the application of the compelling reasons exception, now set out in s.108(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
[4] The applicants contend that the Board misconstrued the evidence and made patently unreasonable findings of fact with regards to Mr. Ahmed's credibility. Further they submit that the Board failed to properly assess their evidence on the question of the possible risk of harm they might face for being returned as failed refugee claimants and argue that the Board erred in requiring that the applicants establish continuing psychological suffering as a prerequisite to the application of the compelling reasons exception.
[5] With regard to the sur place claim, I agree with the respondent that the applicants' arguments amount to a disagreement with the weight assigned to certain evidence by the Board. It was open to the Board to weigh the evidence as it did and I see no reason to interfere with its decision in this respect.
[6] In applying the compelling reasons test, the Board did not erroneously import a requirement for continuing psychological suffering contrary to the decision of this Court in Jiminez v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 87 (T.D.)(QL). Rather it noted that the fact that Mr. Ahmed had voluntarily returned to Pakistan in 1999 indicated that he did not have a subjective fear of persecution at that point in time, notwithstanding the events of 1992 and 1993. In my view, the Board properly concluded that the applicants had not met the test to apply this exception.
Did the Board misconstrue the evidence and fail to consider the applicants' reasonable explanations?
[7] The Board's reasons are in, most respects, very thorough. It is clear that the presiding Board member took care to deal with the issues and evidence before him and properly applied the legal standards. The only issue, in my view, in these proceedings was whether he had misconstrued the evidence and failed to consider reasonable explanations offered by Mr. Ahmed.
[8] Mr. Ahmed testified that he had infrequent contact with his family in Pakistan while he was in Oman. In 1999, he was informed by a friend that his eldest sister was seriously ill and it was for that reason that he returned to Pakistan with his family. He was then advised that the police were still interested in him and had been visiting his sister periodically to ascertain his whereabouts. He went into hiding and left a month later for America to claim asylum. At the hearing when pressed on why he had been able to enter and leave the country freely, he testified there were no entry and exit controls in place and that an uncle paid a bribe to allow them to exit the country. No mention of the bribe was made in his personal information form ("PIF").
[9] The Board found it implausible that the Pakistani police were still looking for Mr. Ahmed and implausible that his family in Pakistan would not have so informed him prior to his trip home. The evidence that a bribe had been paid to facilitate their departure was found to be an "enhancement" to Mr. Ahmed's story. Evidence of a recent police "First Information Report" (FIR) concerning him was discounted as the documentary evidence established that these documents are easily fabricated. On a balance of probabilities, the Board found that the authorities in Pakistan had no interest in Mr. Ahmed or his family and they faced no risk of persecution in that country.
[10] The applicants argued that the Board's findings are patently unreasonable. They say that the Board misconstrued the principal applicant's testimony, as he did not say that he had no contact with his family in Pakistan but only that he had had infrequent contact. Further, Mr. Ahmed testified that his family had decided not to tell him about the authorities' inquiries out of concern for his psychological well-being. He testified that he learned of his sister's illness not from his family but from a friend who visited him in Oman. He did not have problems with the authorities in Pakistan in 1999 because as soon as he learned that they were still looking for him, he and his family went into hiding. These explanations were not mentioned by the Board, and while it may have been open to the Board to reject such explanations, by failing to deal with them it erred in law. The applicants submit that the Board's implausibility finding in relation to Mr. Ahmed not having a well-founded subjective fear of persecution is therefore not sustainable.
[11] The respondent argued that the Board's credibility and implausibility findings were reasonably open to it. Further, the Board's reasons for making these findings, read as a whole, were set out in clear and unmistakable terms: Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.). In this case, the respondent submits that the Board has fulfilled this requirement with "clear and well-articulated reasons".
[12] It is an error for a Board not to deal with the applicants' reasonable explanations for the tribunal's concerns in its reasons: Veres v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 124 (T.D.).
[13] In my view, the Board erred in not dealing with the principal applicant's explanations, namely that he heard about his sister's illness from a friend visiting him in Oman and not from his family, that his family did not inform him of the authorities' inquiries about him in order to shield him from such worry and that he testified that when he entered and left Pakistan in December 1999 and January 2000 respectively there were no entry and exit controls, and nothing appeared strange to the authorities at the airport because he had the required Omani work authorizations. Moreover, the Board mentions the fact that the applicant stated that he remained in hiding during his stay in Pakistan after learning about the authorities' interest in him, but undertakes no analysis or makes any comment of how this relates to its finding that he had no difficulties in Pakistan after he returned there.
[14] While it was open to the Board to disbelieve such explanations for its concerns with the principal applicant's allegations, on their face they appear reasonable and the Board had an obligation to address them in its reasons and explain why it did not find them convincing. Instead, the Board appears to have ignored such explanations, as it makes no mention of them in the reasons. As set out by Justice Pelletier in Veres, supra at page 130, this is a reviewable error:
As a result, Mr. Veres has explained why he was able to produce certain documents (those which were given to him by the authorities) but not others (those which he wrote and sent off to the authorities). As to the latter, he pointed out the problem of access to photocopying technology and indicated that he did not anticipate that he would be appearing before a refugee claims determination board. It is within the CRDD's mandate to disbelieve Mr. Veres' explanation for the absence of copies of important documents. It is not within its mandate to ignore a reasonable explanation and to treat the evidence as though the explanation had never been given. See Chehar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1379 (T.D.) (QL), Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.).
[Emphasis added]
[15] Since the Board did not deal with several of the principal applicant's explanations, which on their face appear reasonable and went to important factual findings on which the Board based its decision to reject the applicants' refugee claim, this judicial review shall be allowed.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed, the Board's decision is quashed and a differently constituted Board shall reconsider the applicants' claim to
be Convention refugees and persons in need of protection in accordance with these reasons. The parties shall have seven days from the date of this Order to submit proposed questions for certification.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-6673-03
STYLE OF CAUSE: JAWWAD AHMED, SADIA JABEEN, KHOULA JAWWAD, KHADIJAH JAWWAD, MARIAM FATIMA JAWWAD
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: AUGUST 4, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: AUGUST 5, 2004
APPEARANCES BY:
Ms. Krassina Kostadinov
FOR THE APPLICANTS
Mr. Stephen Jarvis
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman and Associates
Barristers & Solicitors
Toronto, Ontario
FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040506
Docket: IMM-6673-03
BETWEEN:
JAWWAD AHMED, SADIA JABEEN, KHOULA JAWWAD, KHADIJAH JAWWAD, MARIAM FATIMA JAWWAD
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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