Date: 20010618
Docket: IMM-3765-00
Neutral Citation: 2001 FCT 670
BETWEEN:
NIGHAT SHAHEEN, SABA MUMTAZ, NABEEL MUMTAZ and
NIDA MUMTAZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
INTRODUCTION
[1] Nighat Shaheen, Saba Mumtaz, Nabeel Mumtaz and Nida Mumtaz (the "Applicants") seek judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division, (the "Board") dated June 19, 2000. In its decision, the Board determined that the Applicants were not Convention refugees.
FACTS
[2] The Applicants are citizens of Pakistan. Nighat Shaheen is the mother of the other three Applicants. They claim Convention refugee status in Canada on the grounds of religion and membership in a particular social group, that is, family.
[3] At the hearing before the Board, the adult Applicant testified on March 3, 1999 a family friend came to her house and advised that her husband had been abducted by members of the Tahrik-e Jaffria. This friend also told her that her life and the lives of her children were in danger. The Applicant and her family stayed with the friend that night and the Applicant testified that, in the middle of night, members of the Tahrik-e Jaffria burst into the house in pursuit of them. According to the Applicant, they managed to hide in the basement and left the next morning.
[4] The Applicant also testified that her eldest son was abducted in Lahore and that while she was staying in Karachi, two members of the Jaffria unsuccessfully attempted to abduct another son. At that point, the Applicant engaged an agent, came to Canada and claimed refugee status.
[5] The Board concluded that this Applicant was not a credible and trustworthy witness due to discrepancies between her oral evidence and her Personal Information Form ("PIF"). Among other things, the Board noted that she did not mention her husband's membership in the Sipah-e Sahaaba until questioned about it by the refugee claims officer during the hearing.
ISSUES
[6] The Applicants raise two issues in this application:
1. Did the Board err in determining that the Applicant was not credible?
2. Did the Board err in basing the determination of the claim upon the adult Applicant's credibility, without taking into account the testimony of the daughter, Saba Mumtaz, the translated documents and the general documentary evidence?
APPLICANTS' SUBMISSIONS
[7] The Applicants argue that the Board failed to consider the totality of the evidence properly before it. They say that if the Board rejects some of the evidence before it but accepts other parts of it, it must make a determination as to whether the claimant would qualify as a Convention refugee, on the basis of the evidence accepted by it as credible. They submit that the Board's failure to do this is a reviewable error of law and in this regard, rely on the decision in Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444.
[8] Next, the Applicants argue that the Board relied on irrelevant considerations and factual errors in determining that the principal Applicant's testimony was not credible. Here, the principal Applicant refers to the Board's treatment of the membership of her husband in the Sipah-e Sahaaba.
[9] The Board seems to be suggesting that the Applicant is not credible because she was attempting to conceal the fact that her husband was a member of that group. In doing so, the Applicant says that the Board is ignoring the fact that all the evidence concerning her husband came from her. Furthermore, she says that the Board rejected her reasonable explanation for the discrepancies between her oral evidence and the information set out in the police report.
[10] Generally, the Applicants submit that the Board's fixation on detail caused it to overlook the substance of the facts upon which the claims were based. The perceived discrepancies between the police report and the principal Applicant's testimony, concerning the attempted abduction of her son, are due to the fact that this abduction incident was a matter of which she had no first hand knowledge but was relying on what she was told by her children. Even if the Board rejected the Applicant's evidence in this regard, it had other evidence about this incident from the minor Applicant and was obliged to address that evidence in its decision. It failed to do so and according to the Applicant, this constitutes an error of law.
RESPONDENT'S SUBMISSIONS
[11] The Respondent first takes the position that the Applicants do not quarrel with the findings of the Board concerning the inconsistencies. Second, the Respondent argues that the claims of the principal Applicant and of other family members are inter-related, such that the Board's determination about the Applicant's credibility has an affect on the credibility of the claims of other family members. The Respondent argues that the Board's reasons for rejecting the evidence of the principal Applicant are equally reasons for rejecting the claims of other family members and that credibility findings of a Board are entitled to a high degree of deference.
ANALYSIS
[12] The basis for the Board's determination in this case was its finding that the Applicants lacked credibility. In the present case, the Board found inconsistencies between the principal Applicant's oral evidence and her PIF. However, in my opinion, these findings of inconsistencies resulted from a microscopic examination of the evidence which the Board chose to mention in its reasons.
[13] In Sheik v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 568, Justice Lemieux discussed the importance of inconsistencies in a Board's decision, at paragraphs 22 and 23 as follows:
However, credibility findings by the Refugee Division are not immune from this Court's supervision and this principle has been established in a long series of cases.
The discrepancies relied on by the Refugee Division must be real (Rajaratnam v. M.E.I., 135 N.R. 300 (F.C.A.). The Refugee Division must not display a zeal "to find instances of contradiction in the applicant's testimony... it should not be over-vigilant in its microscopic examination of the evidence" (Attakora v. M.E.I (1989), 99 N.R. 168 at paragraph 9). The alleged discrepancy or inconsistency must be rationally related to the applicant's credibility (Owusu-Ansah v. Minister of Employment and Immigration (1989), 98 N.R. 312 (F.C.A.). Explanations whichare not obviously implausible must be taken into account (Owusu-Ansah, supra).
[14] In my opinion, the discrepancies noted by the Board in the present case, as the result of a microscopic examination of the evidence which it chose to accept, are not relevant to the Applicants' claim for Convention refugee status. If they are not relevant, the Board's reliance on these inconsistencies to reach a negative conclusion about the Applicants' credibility is patently unreasonable.
[15] Furthermore, the Board erred in law in failing to consider the evidence tendered by the minor Applicant. The evidence of Saba Munmatz was before the Board and since it in part corroborated part of the Applicant's evidence, it should have been addressed by the Board. Consideration of the daughter's evidence might have influenced the Board's findings about the credibility of the principal Applicant. The failure of the Board to even mention the evidence from the minor Applicant suggests that the Board failed to consider all of the evidence before it. This is a reviewable error.
[16] In the result, the application for judicial review is allowed. The matter shall be remitted to a differently constituted panel of the Board for determination.
[17] There is no question for certification arising from this application.
ORDER
[18] The application for judicial review is allowed. The matter shall be remitted to a differently constituted panel of the Board for determination.
"E. Heneghan"
J.F.C.C.
OTTAWA, Ontario
June 18, 2001
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