Docket: IMM-6896-11
Citation: 2012 FC 483
Ottawa, Ontario, April 25,
2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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ALI RAZA ABID
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection
Act, SC 2001, c 27 [IRPA], for judicial review of a decision of a
member of the Refugee Protection Division of the Immigration and Refugee Board
[Board] who determined that the applicant was neither a Convention refugee nor a person in need of
protection within the meaning of sections 96 and 97 of the IRPA.
[2]
The applicant has failed to convince me that the impugned decision,
which is almost
exclusively based on credibility findings, does not fall “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v New Brunswick, [2008] 1 SCR 190
at para 47; Canada (Citizenship and Immigration) v Khosa, [2009] 1 S.C.R. 339 at
para 59).
These are my reasons for so finding.
FACTS
[3]
The
applicant is a 25 year old citizen of Pakistan, from the city of
Vehari in the Punjab province. He
alleges that while studying at the Bahauddin Zakariya University he was
approached, harassed and assaulted by members of the Muslim Student Federation
(MSF) – which is allegedly the student wing of the Muslim League Quaid-e-Azam
(MLQ) and also related to a terrorist group called Shabab-e-Milli – because of
his refusal to join the MSF. He also alleges that one of his friends who had
also refused to join the MSF was hit by a car by MSF members and quit the
college shortly after.
[4]
The
applicant alleges that on January 18, 2007, he became involved in an
altercation with the brother of Tahir Iqbal Chaudhary, a member of the
provincial assembly for the Vehari district who was also a member of the MLQ.
The applicant alleges that after this incident, during which his left leg was
broken, his family and himself moved to another location in the city and the
applicant never went back to college except for his exams. Also, in January
2007, the applicant’s father wrote a letter to the president of the local
traders association (Anjuman Tajiran) to solicit their intervention with Tahir
Iqbal in order to cease the harassment against the applicant. During the month
of March 2007, the applicant received a letter threatening his life for having
opposed the MSF in the student elections. His father was also threatened and
insulted when he attempted to meet with Tahir Iqbal to find out whether he was
involved in the writing of the letter.
[5]
Before
the Board, the applicant testified that two days after this incident he was
arrested by the police at their family jewellery shop where the applicant
worked and was kept under detention for seven to eight hours. During detention,
the applicant was told to stop disturbing Tahir Iqbal. The applicant allegedly
stopped working after this incident. The applicant also testified that he was
arrested by the police on another occasion in May 2007 after his father
attempted again to seek help from the traders association. This time the
applicant was detained for three to four hours and his father had to pay a
bribe to the police to release him from detention. The applicant allegedly
definitely quit work thereafter. However, he continued receiving anonymous
phone calls at home and written messages threatening his life.
[6]
The
applicant also testified that on the night of February 12, 2008, an unknown
person came to their house asking for the applicant. When the applicant’s
father told him that he was not at home, the person became violent and fired
bullets at the house before running away. His father lodged a complaint at the
police station but no police report was registered that day. By that time, his
father contacted an agent and plans were made for the applicant to come to Canada and claim
refugee protection. The applicant left Pakistan on July 9, 2008 and arrived in Canada on April 11,
2010, after a long travel via Dubai, Brazil, Venezuela and a 21
month transit in the Dominican Republic where no claim for
refugee status was made.
DECISION
UNDER REVIEW
[7]
The
Board found that because of the lack of credibility and plausibility with
respect to determinative issues of the applicant’s claim, the applicant did not
establish that he has a well-founded fear of persecution. Moreover, the Board
found that a reasonable Internal Flight Alternative (IFA), namely Karachi, existed for
the applicant.
[8]
The
Board focused much of its reasons on the issue of credibility, finding that the
applicant’s evidence, including his oral testimony, was not credible. It noted several major concerns
with respect to the inconsistencies and contradictory declarations reflected in
the responses furnished by the applicant in his Claim for Refugee Protection
form completed upon his arrival in Canada [Claim Form], as compared with his
Personal Information Form (PIF) narrative, dated May 6, 2010, and his testimony
at the hearing before the Board. In general, the Board found the pre-PIF
information to be more candid and less circumspective; therefore more credible.
[9]
These
inconsistencies
or contradictions can be summarized an follows:
·
First,
the Board noted that the applicant reversed the chronology of the events
described in his Claim
Form,
as compared with the PIF narrative. In response to question 43 of the Claim Form, the
applicant stated that his problems began with a group of boys in his
neighbourhood (including the brother of Tahir Iqbal) and were later extended to
members of the MLQ political party, while in his subsequent response to
question 31 of the PIF he states that his problems started at the university
with the MSF and were carried over to his neighbourhood later when he was
attacked by the brother of Tahir Iqbal and his friends.
·
Second,
the Board found the applicant’s statement in response to question 24 of the Claim Form according to
which he continued to work in the family jewellery shop until July 2008 to be
more credible than what he testified at the hearing, i.e. that he stopped
working after the alleged threats to his life during the Month of May 2007. The
applicant explained that he did not want to declare to immigration authorities
that police was involved in those incidents and that he was detained. The Board
rejected this explanation on the basis that in response to question 43 of the Claim Form the
applicant did indicate that police became involved with the incident during
that time and refused to register his complaint. The Board also found it
implausible that the applicant stayed at home and did not work for 14 month,
from May 2007 to July 2008, because of his fear for his life.
·
Third,
the Board noted that the applicant’s testimony according to which he wrote his
final exams during the months of November and December 2006 and that his family
moved to another location after the incident of January 2007 is contradicted by
his PIF narrative where he stated that he wrote his exams after the move. The
Board added that this testimony is also confused by the applicant’s response to
question 25 of his Claim
Form
where he stated that his family moved to Sharqi in October 2006.
·
Fourth,
the Board found that in view of the evidence the applicant’s alleged
persecutors were aware where the applicant’s family had moved to by no later
that May 2007 since threats were allegedly being received on the residential
telephone. The Board found that the applicant would not have continued to live
in the same place until July 2008 if he had subjective fear for his life. The
Board stated that knowing where the applicant lived and worked the alleged
persecutors could have killed him during this time if that was their intention.
·
Fifth,
the Board noted that contrary to what he alleged afterwards, in response to
question 37(c) of his Claim
Form
the applicant stated that he has never been detained by the police or by any
other authority. The Board concluded that the applicant had not been detained
in Pakistan either in
March or in May 2007.
[10]
The Board also gave little to
no probative value to certain documentary evidence submitted by the applicant:
·
The Board noted that the
admission/discharge certificate from City Hospital Vehari, dated January 18,
2001, as well as the treatment bill and the letter from the administrator of
the hospital, indicate that the applicant sustained a broken leg but there is
no indication of the cause of such fracture or of any other kind of injury
caused to the applicant during the altercation.
·
The Board gave no credence
to the letter dated January 3, 2007 that the applicant’s father allegedly
addressed to the president of a local traders association after the incident of
January 18, 2007. The Board found the letter to be a fabrication because it
predates the incidents described by the applicant, which started on January 18,
2007 according to the Claim Form
(response to question 43) and the PIF narrative (response to question 31).
·
On the basis of this
finding, the Board also refused to give weight to two other letters from the
applicants’ father; namely an “application for registration of a case against
unknown accused”, dated February 12, 2008, and an undated statement from the
applicant’s father in which he states that his son’s life is in danger in
Pakistan.
·
The Board also rejected
another undated letter from the applicant’s brother in which he states that he
was beaten by five people including the brother of Tahir Iqbal and that the
police refused to intervene because the accused are in the ruling party. The
Board gave no credence to this letter which assumes that Tahir Iqbal was
responsible for the beating and that the police refused to take any action
while the applicant’s brother did not file a complaint.
[11]
This
now brings us to the existence of an IFA in Karachi. The
applicant testified at the hearing that the MLQ, with which the MSF is
associated and which is linked to a criminal gang, Shabab-e-Milli, would be
able to locate him in Karachi because the Shabab-e-Milli is active all over
Pakistan and Tahir Iqbal would be still looking for the applicant. However, the
Board found it implausible that Tahir Iqbal would be seeking to relocate the
applicant and would want to kill him because of his refusal to join the MSF
five years ago or because the applicant’s father sought help from the traders
association in May 2007. Furthermore, the Board noted that its examination of
the most recent National Documentation Package on Pakistan has not
indicated any reference to the alleged criminal gang with supposed connections
all over Pakistan. Counsel for
the applicant did not refer the Board, or the Court in the present application
for judicial review, to any documents corroborating the applicant’s allegation
with this respect.
ANALYSIS
[12]
The applicant
takes issue with all of the Board’s various credibility findings as well as its
determination with respect to the availability of an IFA in Karachi. The sole
issue raised in this judicial review is thus whether the Board’s findings of
fact are supported by the evidence and are reasonable in the circumstances.
[13]
The
applicant contends that the Board member placed an overabundant amount of
weight on the statements contained in the Claim Form which, according to the
applicant, contains incomplete information provided by the applicant while he
was in detention, and has been editorialized by an immigration officer. The
applicant is of the view that his PIF narrative and his testimony, which
corroborate one another, should have been given more weigh by the Board.
[14]
The
applicant also contends that the different sequence of facts in his PIF
narrative and testimonial evidence was not reasonable grounds to impugn his
credibility because this was due to the order in which the questions were posed
in the questionnaire. He explains that the substance of his claim was not set
out in his Claim
Form
because he was specifically told by the immigration officer to be brief in his
responses and that part of what he said did not fit in the limited space of the
form.
[15]
However,
as underlined by the respondent’s counsel at the hearing before the Court, the
inconsistencies or contradictions noted by the Board in his decision are major
and concern central elements of the claim such as the cause of his problems and
when they stared, the dates when the applicant moved, stopped to work, whether
he was arrested or not by the police, etc. In such circumstances, the Board was
certainly entitled to consider the statements in the Claim Form as it is
apparent that the negative credibility findings are not just based on minor or
trivial variations or omissions (Chavez v Canada (Citizenship and
Immigration), 2007 FC 10 at paras 13-15; Garay Moscol v Canada
(Citizenship and Immigration), 2008 FC 657 at paras 21-22; Hidalgo
Carranza v Canada (Citizenship and Immigration), 2010 FC 914 at paras
20-22).
[16]
Moreover,
I
do not agree with the applicant that the reversed order of facts was due to the
order in which the questions were asked. The Board did not raise a problem of
chronology of events. It rather questioned the fact that the applicant did not
start with what was most important in his claim, namely his problems with the
student organization, when asked why he was asking protection in Canada. In the
Court’s view, this was a reasonable finding. Furthermore, the explanation given
by the applicant with respect to why he gave shorter answers at the port of
entry was considered and rejected by the Board. This was also reasonable and
certainly within the Board’s purview.
[17]
In
the end, it is the Court’s view that the applicant simply disagrees with the
findings of the Board and now puts forward various reasons as to why the Court
should also disagree with the Board’s findings of fact. It should be remembered
that the task of the Court in a judicial review is not to substitute its view for
that of the Board on credibility issues: Juarez v Canada
(Minister of Citizenship and Immigration), 2010 FC 890 at para
14.
[18]
The
applicant contends that the Board cannot blame him for not having mentioned
either at the hearing or in his PIF narrative that he sought protection from
the police while he did state so in his Claim Form. The applicant submits
that the Board should have given him an opportunity to respond to its concern
that no police protection was sought. However, the jurisprudence is to the
effect that “the duty of fairness does not require that the applicants be
confronted with information which they themselves supplied” (Azali
v Canada (Minister of Citizenship and Immigration), 2008
FC 517 at para 26;
AYMD v Canada, 2009 FC 1232 at paras 29-30). I agree with
the respondent that even if the applicant did at some point during the hearing
state he sought police protection, this does not render the Board’s finding
unreasonable.
[19]
The
applicant submits that when he stated in response to question 37(c) of his Claim Form that he has
never been detained by the police or by any other authority, in his mind the
question dealt with whether he had been suspected of or detained for having
committed any criminal acts and that is why he answered with a negative. Again,
this explanation does not render the Board’s decision unreasonable. The
question does not imply in any way that it was exclusively concerned with
criminal acts. It explicitly asks whether the claimant or her/his accompanying
minors have “ever been detained by the police, the army or any other
authority”. The Board did not err is finding that had the applicant been
detained at any time before the arriving in Canada he would not
have answered to this question in the negative.
[20]
The
applicant also takes issue with the Board’s finding with respect to the
hospital documents indicating that the applicant had a broken leg. The
applicant says that it would have been inappropriate and highly suspect if the
medical report had stated what the fracture was due to. In the Court’s view,
the Board’s overall conclusion that the medical report did not indicate any
injuries other than the fracture in the applicant’s leg, is not unreasonable.
One could reasonably expect that the applicant suffered other injuries during
the altercation.
[21]
The
applicant did not convince the Court that the Board’s findings of fact with
respect to his lack of credibility and his lack of subjective fear are
arbitrary or capricious. Therefore, the Court cannot agree that the Board acted
in an unreasonable manner in refusing to give credence to the letters from the
applicant’s father and brother or the threat letter. A general finding of lack
of credibility can affect all relevant evidence submitted by the applicant and
ultimately cause the rejection of the claim (Ayub v Canada
(Minister of Citizenship and Immigration), 2004 FC 1411 at paras
8-9).
[22]
At
the hearing before the Court, the applicant’s counsel developed at length a
number of other grounds of attack with respect to the findings of fact made by
the Board, and referred to the applicant’s explanations in the transcripts with
respect to different inconsistencies and apparent contradictions noted by the
Board in paragraphs 9 to 17 of its reasons. Again, it was exclusively to the
Board to gauge the applicant’s credibility and it is not the task of the
reviewing court to enter into a microscopic analysis of the impugned decision.
Although, it may contain some errors of fact, I am satisfied that none is
determinative in a way as to affect the reasonableness of the overall
conclusion reached by the Board.
[23]
Given
that the issue of credibility is determinative, there is no real need for the
Court to address the issue of an existing IFA in Karachi or the availability of
state protection (Carillo v Canada (Minister of Citizenship
and Immigration), 2008 FCA 94 at para
14; Butt v Canada (Citizenship and Immigration),
2010 FC 28 at para 9 [Butt]; Houshan v Canada
(Citizenship and Immigration), 2010 FC 650 at para
15). However, I will simply add that the finding made by the Board in this
regard is also supported by the evidence and reasonable in the circumstances (Jilani
v Canada (Citizenship and Immigration), 2007 FC 1354 at paras 12-13; Trevino
Zavala v Canada (Citizenship and Immigration), 2009 FC 370 at para 5; Butt,
above, at paras 9-15; Malik v Canada (Citizenship and Immigration), 2010
FC 229 at paras 12-15).
[24]
Therefore,
having had the opportunity to review the documentary evidence, the transcripts
of the hearing, the submissions of the parties and the Board’s decision, the
Court finds the final determination that the applicant is not a convention
refugee pursuant to section 96 of the IRPA or a person in need of protection
within the meaning of section 97 of the IRPA to be reasonable and accordingly
dismisses the present application for judicial review.
[25]
No
question for certification was submitted by counsel and none shall be certified
by the Court.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial review is dismissed. No question of general
importance is certified.
“Luc
Martineau”
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