Date: 20040610
Docket: IMM-4692-03
Citation: 2004 FC 840
Toronto, Ontario, June 10th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
KAMRAN AMIR CHAUDHARY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Kamran Amir Chaudhary seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), reasons dated April 11, 2003. In that decision, the Board determined that the Mr. Chaudhary was not a Convention refugee or a person in need of protection. The applicant seeks an order setting aside this decision and an order remitting his claim back to a differently constituted Board for reconsideration.
BACKGROUND
[2] Mr. Chaudhary, a citizen of Pakistan, is a Shia Muslim from Punjab. He claimed Convention refugee status in Canada, pursuant to section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), by reason of his fear of persecution at the hands of the Sipah-i-Sahaba Pakistan ("SSP") because of his religion and his membership in a particular social group, as a Shia Muslim. He also claimed to be a person in need of protection, pursuant to the grounds set out in section 97 of IRPA, based on a fear of being harmed by the SSP.
[3] Mr. Chaudhary claimed that the SSP wanted to kill him because they held him responsible for the conversion of his Sunni Muslim friend, Khawar, to the Shia faith. Khawar's conversion took place in February 2001. The applicant alleged that Khawar's father visited him in his shop in the middle of March, accusing him of being responsible for his son's conversion and threatened him with serious harm. Khawar's father told him that he had sent Khawar to another city before the SSP found out about his conversion.
[4] The applicant testified that he received a telephone call on March 25, 2001 from the SSP threatening to kill him if there was proof that he had been promoting the Shia religion in his shop. On April 15, 2001 the applicant claimed that he was dragged from his car by four motorcyclists and beaten with hockey sticks after having driven Khawar from the Imambargah (place of worship) to the bus stop. The applicant claimed that he was again beaten by Sunni Muslims in September 2001 and threatened with death On both occasions when he was beaten, the applicant claims that he was saved by the intervention of passers-by.
[5] The applicant says that he and his family went to the police to report the incidents, however the police did not do anything since he could not identify the attackers. The applicant went to a friend's house in Islamabad and the next day his father informed him that "SSP goons" had searched for the applicant throughout his family's house. The applicant relocated to Multan, and learned that the SSP were repeatedly looking for him and threatening his family. Another incident occurred in September 2001, in which he was beaten by SSP members in Multan. The police would not do anything after he reported this incident and advised him to leave Multan. With the help of his family, he arranged for an agent to help him leave Pakistan in October 2001.
[6] The applicant arrived in Canada on October 2, 2001. He made his claim for refugee protection on October 13, 2001. His hearing before the Board was held on December 20, 2002.
The Board's Decision
[7] The Board found that the applicant lacked a subjective basis for his fear due to the delay in making his claim and that the objective basis for his fear was not well-founded, in that many of his claims were implausible. In particular, the Board made the following implausibility findings:
- It was implausible that Khawar, the applicant's friend who converted to Shiaism, would ignore his father's advice and return to the location where he had formerly lived and been threatened;
- It was implausible that the applicant would risk being seen by the SSP with Khawar, in driving him from the Imambargah to the bus stop;
- It was implausible that the SSP would fail in their attempts to kill the applicant, if that had been their intention. If the SSP threats had really occurred, then its members would have managed to be successful in killing the applicant;
- It was implausible that the applicant would be targeted by the SSP because he did not have the profile of Shia Muslims who were targeted for violence in Pakistan.
ISSUES
[8] 1. Did the Board base its decision on patently unreasonable implausibility findings, made in a perverse manner or without regard to the evidence before it?
2. Was the Board's conclusion in relation to the subjective element of the applicant's claim based on patently unreasonable findings of fact?
ANALYSIS OF PARTIES' SUBMISSIONS
[9] The applicant submits that some of the Board's key implausibility findings are patently unreasonable and were made without regard to the evidence. The respondent argues that the applicant has failed to establish that the Board's decision is patently unreasonable or that it committed a reviewable error of law or fact. In essence, the respondent's position is that the applicant does not meet the profile of persons likely to be the target of the SSP, according to the documentary evidence, such as political or professional leaders such as doctors or educators within the Shia community. He was not an active proselytizer and thus there was no reason for the SSP to target him personally.
[10] In my view, two of the Board's implausibility findings that appear to have been central to its finding that the applicant did not objectively face persecution, are highly speculative. In other words such findings are patently unreasonable. I cannot say what impact such findings had on the overall claim and therefore the prudent course is to allow this judicial review.
[11] First, the Board concluded that it was implausible that the SSP was not able to kill the applicant. At page 4 and 5 of the reasons, the Board stated, "Further, I find it implausible that if the intent of the SS[P] were to kill the claimant they would have found an opportunity to do so.... I find it implausible that the Sipah-i-Sahaba, a terrorist group, if instructed to kill their target, would fail to succeed in their task on two separate occasions. Rather, I believe that if the threat to this claimant's life were real the Sipah-i-Sahaba would have managed a successful opportunity."
[12] The respondent submits that it was reasonable for the Board to conclude that the SSP would have carried out its threats when given the opportunity if the threat to the applicant's life had been real. The Board was entitled to reject the applicant's explanations for why this did not happen. In other words, it was reasonable to hold the fact that the applicant was not killed by the SSP against him in determining the credibility of his claim.
[13] In my view, such reasoning is perverse and without any foundation in the record. There is no evidence referred to by the Board, or which I can find on the record, that sets out the "success record" of this particular militant/terrorist organization in killing those it threatens. I note as well that the applicant has not alleged that he escaped attacks on multiple occasions, only that he escaped two times from incidents that did not purportedly involve firearms, but beatings with sticks. Such allegation is not, for the sole reason of escaping two attacks, inherently implausible, as found by the Board. Finally, in relying on this reasoning the Board has adopted a perverse foundation of thought, i.e. "since you were not killed by your alleged persecutor, I do not believe that you were really threatened". Such "implausibility" finding cannot be accepted on that reasoning alone and is not a ground for displacing the principle of truthfulness in oral testimony, set out in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).
[14] Next, I find the Board's finding that it was implausible that the applicant would take a chance of being seen with Khawar by dropping him off at a bus stop after he unexpectedly ran into him at the Imambargah ignores the applicant's testimony that this was a chance meeting and that the applicant's time spent with Khawar was brief. The applicant's testimony, as set out in the transcript of hearing, reflects the fact that he was surprised to run into Khawar at the Imambargah. It is not inherently implausible that the applicant, who had consistently described his friendship with Khawar as a close one, would offer him a ride to the bus stop, particularly since there had been no action from the SSP upon its March 25, 2001 threat, up to that point.
[15] The applicant also submits that the Board member ignored evidence stating that reprisals and threats of reprisals against suspected converts are common in Pakistan. I agree with the respondent that the evidence the applicant refers to is inconclusive on this point, as it speaks to the situation in general of those who convert from Islam to other religions, rather than to the issue of conversion between the Sunni and Shia sects. The Board made no error in not specifically referring to this evidence and is presumed to have considered it: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.) and Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.)(QL).
[16] Moving to the applicant's second submission, the applicant submits that the Board placed "undue emphasis" on his delay in instituting a refugee claim in Canada since the delay was not inordinate in nature, being only eleven days. The respondent concedes that on its face, eleven days is not inordinate, nonetheless delay was a relevant factor that the Board was entitled to consider in assessing the applicant's actions. The Board gave the applicant an opportunity to explain the delay and was not satisfied with his answers. It was not unreasonable for the Board to conclude that he should have made his claim at Pearson Airport, especially as he testified that the agent took his passport and disappeared at the airport, rather than wait for eleven days before making an inland claim.
[17] In my view, while the Board recanted the correct legal test, namely that delay is not to be viewed as the determinative factor in the subjective analysis, the only factor cited by the Board in leading it to question the applicant's subjective fear is this eleven-day delay in making his claim for refugee protection in Canada and that his explanation for the delay was not acceptable.
[18] If there were no grounds warranting the intervention of this Court in relation to the Board's findings on the applicant's objective fear of persecution, this finding on subjective fear would not be sufficient, given that it appears that delay was cited by the Board as only one example for doubting the applicant's subjective fear. However, in combination with the problems noted above in relation to the applicant's objective fear, I find that the Board's finding on subjective fear cannot save this decision. When the objective component of the Board's decision is taken away, all that is left to support the Board's subjective analysis is a minor period of delay after reaching Canada. As noted, the Board does not refer to any other reason for doubting the applicant's subjective fear of persecution.
[19] Accordingly, this application for judicial review is allowed. As no question of general importance for certification was proposed, none is certified.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed, the Board's decision is set aside and differently constituted panel of the Board shall reconsider the applicant's refugee claim in accordance with these reasons. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4692-03
STYLE OF CAUSE: KAMRAN AMIR CHAUDHARY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 8, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: JUNE 10, 2004
APPEARANCES BY:
Mr. John Svaglio
FOR THE APPLICANT
Mr. Michael Butterfield
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. John Svaglio
Barrister & Solicitor
Pickering, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040610
Docket: IMM-4692-03
BETWEEN:
KAMRAN AMIR CHAUDHARY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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