Date: 20040617
Docket: IMM-9579-03
Citation: 2004 FC 876
CALGARY, Alberta, this 17th day of June, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
FAISAL SHAHZAD
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 November 21, 2003, which determined that the applicant is not a Convention refugee or a person in need of protection, for lack of a well-founded fear of persecution.
FACTS
[2] The applicant is a 29 year old citizen of Pakistan who arrived in Canada on January 28, 2003 as a refugee claimant. He alleges a well-founded fear of persecution for his political opinion, at the hands of political opponents including the leaders of the Pakistan Muslim League ("PML") and the Jamat-i-Islami (JI); religious fundamentalists; the Pakistani military; and police.
[3] The applicant left Pakistan for the United States on December 8, 1998 with a U.S. visitor's visa. The applicant remained in the US for four years during which time he worked as a cab driver, and continued to be politically active with the PPP in Chicago, Illinois. He also applied for permanent residence in Canada, in November, 2001.When he had received no response from Citizenship and Immigration Canada by January, 2003, the applicant, fearing deportation from the US to Pakistan, left the US for Canada on January 28, 2003 and made a refugee claim.
[4] After the Board heard the applicant's claim, it concluded that his fear of persecution in Pakistan was not well-founded and that there was no serious possibility that he would be harmed in Pakistan. The Board found that the applicant had embellished his claim and failed to produce credible evidence to support his alleged fears. The Board reached its conclusion based on the following findings:
1) the applicant did not hold office in the PPP; his activities consisted of low-level work such as arranging chairs at meetings and putting up stickers and banners; he took instruction from local leaders of the party;
2) the applicant's claim that he made speeches criticizing the opposition was not supported by the evidence and was an embellishment of his claim;
3) the incident during which the applicant's farm equipment was destroyed was an isolated criminal event without nexus to a Convention ground; the applicant did not present any credible evidence to link the perpetrators to the political opposition;
4) the applicant failed to follow up on the police's response to the farm equipment incident;
5) the applicant's allegation that he received a phone call from unidentified extremists after the farm equipment incident was found to be an embellishment of his claim;
6) the applicant's claim of having been beaten up by rival party workers was found to be harassment rather than persecution; the incident was isolated, rather than systemic or persistent;
7) the police are not currently looking for the applicant or interested in arresting him;
8) it was implausible that the applicant only found out about false charges laid against him in September, 2000, since the applicant had been in regular contact with his family since leaving Pakistan in December, 1998;
9) the supporting letter from the applicant's father was self-serving; the Board concluded that the documents indicating police interest in the applicant were fabricated;
10) the documentary evidence indicates that false documents, including court documents, are easily obtained in Pakistan;
11) the applicant remained in the US legally until April 2000, and then remained illegally until he faced imminent deportation before coming to Canada in January, 2003; although he applied for permanent resident status in Canada, he never applied for asylum in the US, and only sought counsel when he was on the brink of removal; and,
12) the applicant's pattern of behaviour, and failure to claim asylum at the first instance did not support a well-founded fear of persecution.
ANALYSIS
[5] This application raises two issues:
1) did the Board err in rejecting the credibility of the applicant?
2) did the Board err in determining that the applicant's fear of persecution was not well-founded?
[6] The standard of review applicable to the Board's findings of fact, and assessment of credibility is patent unreasonableness. This Court will not substitute the Board's decision with its own, except the Board's decision is clearly wrong. See Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), and De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.).
Credibility
[7] While this Court may have concluded differently, the Board, as a specialized tribunal, has complete jurisdiction to weigh evidence and to determine the credibility of testimony. I find that the Board has stated, in clear and unmistakable terms, why it found the applicant's allegations to not be credible, and that this finding is not patently unreasonable.
Fear of Persecution
[8] The Board found that the applicant remained in the United States from December 8, 1998 to January 28, 2003 without making a refugee claim. The Board held that this behaviour supports a finding that the applicant lacked a "well-founded fear of persecution". The Board held that it is reasonable to expect a person who fled his or her homeland for fear of persecution will take steps upon arriving at a safe country to seek refugee protection to ensure that he or she is not eventually sent back to their homeland. The Court agrees with the Board. The four year delay by the applicant in making his refugee claim belies his contention that he fled Pakistan due to a well-founded fear of persecution. A legitimate refugee claimant is expected to claim refugee status as soon as possible if they really are fleeing for fear of their life. Accordingly, Board's finding that the applicant does not have a well-founded fear of persecution was reasonably open to the Board.
[9] A person who has been living in the United States for a period of time without making a refugee claim and then has to leave the United States, cannot arrive in Canada claiming refugee status and expect the Board to believe they are a Convention refugee. Delay in making a refugee claim, whether it is in Canada or the United States, is a reasonable factor for the Board to weigh in assessing the credibility of a person's "well-founded fear of persecution".
[10] Since I have concluded that the Board did not err in either its negative credibility finding, or its finding regarding the applicant's fear of persecution, this application for judicial review must be dismissed.
[11] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9579-03
STYLE OF CAUSE: Faisal Shahzad v. The Minister of
Citizenship & Immigration
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: June 16, 2004
REASONS FOR ORDER AND ORDER : KELEN J.
DATED: June 17, 2004
APPEARANCES:
Mr. Birjinder P. S. Mangat FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Birjinder P. S. Mangat
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
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