Date: 20120525
Docket:
IMM-3614-11
Citation:
2012 FC 645
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 25, 2012
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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ZAHIDA MUNIR
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the panel), rendered on April
29, 2011, wherein the panel concluded that the applicant was neither a refugee
within the meaning of the United Nations Convention Relating to the Status
of Refugees nor a person in need of protection, as these terms are defined
in sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27.
I. Facts
[2]
The
applicant was born on October 15, 1951 and is a Pakistani citizen. She is of
the Ahmadiyya faith, as is her husband and four children.
[3]
The
applicant claimed to be an active member of an Ahmadi religious organization
called Lajna, for which she allegedly acted as secretary in charge of education
for a local Ahmadi women’s organization. As part of her activities for this
organization, she held monthly meetings at her home during which the women in
attendance could watch the Friday sermon of their Khalifa, exiled in London,
the sermon being broadcast via parabolic antenna. The applicant also taught the
Ahmadi version of the Quran to some children in the neighbourhood.
[4]
In
July 2007, the imam of the local Sunni mosque, Molvi Maqsood Ali (Imam Ali),
allegedly told his followers that the applicant was organizing Ahmadi religious
activities at her home and teaching the Ahmadi version of the Quran to Sunni
children. He allegedly issued a fatwa against her. The next day, some hooligans
destroyed her parabolic antenna while she was away, and the police refused to
intervene on the pretext that it was a religious problem.
[5]
On
September 15, 2007, the Imam allegedly ordered the applicant to end her
religious activities, under threat of retaliation. The following Friday, some hooligans
allegedly shouted anti-Ahmadi slogans outside her home, while she and three
other women were watching the Khalifa’s sermon.
[6]
The
same tactic was allegedly repeated in the weeks that followed, and the Imam
himself allegedly protested in front of the applicant’s home with several other
coreligionists. The women watching the Khalifa’s sermon at the applicant’s home
allegedly had to be escorted out by their husbands for their protection.
[7]
After
talking to her daughter, who lived in Canada, the applicant decided to leave Pakistan
and come to Canada to seek refuge. She arrived in Canada on November 20, 2007, and
claimed refugee status a few days later, i.e. on December 1, 2007.
II. Impugned decision
[8]
The
panel was convinced that the applicant’s statements were false and that her
story was a fabrication. The panel considered the applicant’s responses during
her testimony to be evasive and implausible.
[9]
The
panel noted that, even before the applicant arrived in Canada, Citizenship and
Immigration Canada had been informed by her ex son-in-law, i.e. on February 24,
2006, that the applicant was planning to apply for a visitor visa for Canada
and then to claim refugee status. The panel noted that the applicant had not
applied for refugee protection during her first visit to Canada in 2006, but
had in fact filed such an application when she returned in November 2007. The panel
acknowledged that the failed marriage of the applicant’s daughter and her ex
son-in-law could have created animosity, but observed that the ex son-in-law’s
prediction came true.
[10]
The
panel emphasized that the applicant had not provided any evidence that Imam Ali
existed. The applicant was evasive and confused when questioned about the
location of the mosque where the imam preached, and was unable to name the
location.
[11]
The
applicant did not mention any involvement in a religious organization on her
initial Personal Information Form (PIF). It was in an amendment to her PIF in
December 2008 that she first declared she had been the secretary in charge of
education for a local Ahmadi women’s organization. The panel noted that she was
unable to provide the first name of the president who had allegedly appointed
her to the position, the names of the people who oversee the organization, the
names of the other members of the organization or the names of the women who
were at her home on October 14, 2007. The panel added that the applicant did
not seem to know anything about the positions in the organization, except that
of president, treasurer and the position she held.
[12]
The
panel took into account the fact that the applicant’s family continued to live
in the house after the applicant left, and that her daughter had even left
Canada to go and live there. Furthermore, the advertising obtained by the panel
from the Internet, boosting the advantages of the residential development where
the applicant’s home is located, described an affluent neighbourhood in Lahore;
it was unlikely that religious extremists could intimidate residents or damage
properties there, particularly since the police station is located at the
corner of the street where the applicant lived. Her family is well off: the
applicant’s husband is a retired major of the Pakistan Army and one of her sons
is a major presently serving. Thus, the panel was of the opinion that if the applicant’s
allegations were true, she could have availed herself of State protection.
III. Issues
[13]
This
application is for judicial review first and foremost of the panel’s assessment
of the applicant’s credibility and of the issue as to whether the panel’s
conclusion in that respect is reasonable. The applicant also claimed that the panel
breached the principles of procedural fairness by relying on an advertising
folder obtained from the Internet about which she was not informed until the
day of the hearing and was not given an opportunity to file rebuttal evidence,
as provided for in Rule 18 of the Refugee Protection Division Rules, SOR/2002-228
(the Rules). I will deal with these two arguments in the following
paragraphs.
VI. Analysis
(A) Procedural fairness
[14]
It
is settled law that any issue raising principles of procedural fairness is
subject to the correctness standard of review (CUPE v Ontario (Labour
Minister), 2003 SCC 29, [2003] 1 S.C.R. 539; Canada (Attorney General) v Sketchley,
2005 FCA 404, at paragraph 53, 263 DLR (4th) 113).
[15]
The
applicant submitted that the panel had breached the principles of procedural
fairness and Rule 18 of the Rules by using its specialized knowledge about
the residential development where she lived, without conveying its source of
information to her prior to the hearing and without giving her an opportunity
to submit rebuttal evidence. In fact, the day of the hearing, the panel gave
the applicant’s counsel a copy of the advertising folder describing such
development as a “residential paradise, a cultural heartland and a land of
endless opportunities” and a “secure idyllic community”. The panel referred to the
folder in its decision to conclude that the applicant’s account was implausible.
[16]
I
cannot accept the applicant’s argument for several reasons. First, I note that Rule
18 of the Rules requires a panel intending to use information to notify
the claimant of refugee protection thereof, but does not specify any time frame
for such notification. The rule reads as follows:
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18. Before using any
information or opinion that is within its specialized knowledge, the Division
must notify the claimant or protected person, and the Minister if the
Minister is present at the hearing, and give them a chance to
(a)
make representations on the reliability and use of the information or
opinion; and
(b)
give evidence in support of their representations.
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18. Avant d’utiliser un
renseignement ou une opinion qui est du ressort de sa spécialisation, la
Section en avise le demandeur d’asile ou la personne protégée et le ministre
— si celui-ci est présent à l’audience — et leur donne la possibilité de :
a) faire des
observations sur la fiabilité et l’utilisation du renseignement ou de
l’opinion;
b) fournir des
éléments de preuve à l’appui de leurs observations.
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[17]
It
therefore does not appear essential for a party to be informed, prior to the
hearing, that the panel will rely on information within its specialized
knowledge. What is important is that a party can adequately assert his or her
point of view on that information. That, moreover, is what my colleague Justice
Gauthier concluded (when she was a member of this Court) in Mercado v Canada
(Minister of Citizenship and Immigration), 2010 FC 289 at paragraphs 57-58,
371 FTR 1:
57. In his first memorandum, the applicant referred to Rule 18 which, he says,
applies in this case. This rule states that, before using any information or
opinion that is within its specialized knowledge, the Division must notify
claimants and give them a chance to make representations on the reliability and
use of the information or opinion and to give evidence in support of their representations.
According to the applicant, this unidentified, unsigned document in a package
of immigration documents involving the applicant and his family does not meet
the requirements of Rule 18.
[58] It is certainly clear that the applicant
cannot argue that the RPD did not inform him at the hearing about its concerns,
which included those described above in the note at paragraph 54.
[18]
The
panel granted the applicant’s counsel fifteen minutes at the hearing so that
she could consult her client about the aforementioned advertising folder.
Following that consultation, neither counsel nor the applicant objected to the
use of the folder. The applicant therefore cannot claim that she was not given
an opportunity to make representations in respect of such folder, and her
attempt to undermine the weight thereof before this Court by arguing that it is
merely an advertising document embellishing reality comes very late.
[19]
Even
if one were to assume that the panel erred by relying on the advertising
document, that factor was not a determining one in the panel’s decision. A
breach of Rule 18 of the Rules, alone, is not sufficient to set aside the
panel’s decision if the other grounds raised to conclude that the applicant’s
account was implausible and non credible stand on their own (see Kabedi v Canada
(Minister of Citizenship and Immigration), 2004 FC 442 at paragraph 14, 131
ACWS (3d) 313; Lin v Canada (Minister of Citizenship and Immigration),
171 FTR 289 at paragraph 21 and 23, 90 ACWS (3d) 116 (1st inst.)).
(B) Lack of credibility
[20]
The
assessment of credibility falls within the expertise of the panel. It consequently
requires application of the reasonableness standard (Dunsmuir v New Brunswick,
2008 SCC 9 at paragraphs 47, 51 and 53, [2008] 1 S.C.R. 190 (Dunsmuir)). More
recently, the Supreme Court of Canada reconsidered the role of the courts in
reviewing decisions. It took the opportunity to indicate that reviewing courts
must show deference:
15.
In assessing whether the decision is reasonable in light of the outcome and the
reasons, courts must show “respect for the decision-making process of
adjudicative bodies with regard to both the facts and the law” (Dunsmuir,
at para. 48). This means that courts should not substitute their own reasons,
but they may, if they find it necessary, look to the record for the purpose of
assessing the reasonableness of the outcome.
[16]
Reasons may not include all the arguments, statutory provisions, jurisprudence
or other details the reviewing judge would have preferred, but that does not
impugn the validity of either the reasons or the result under a reasonableness
analysis. A decision-maker is not required to make an explicit finding on
each constituent element, however subordinate, leading to its final conclusion
(Service Employees’ International Union, Local No. 333 v. Nipawin District
Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the
reasons allow the reviewing court to understand why the panel made its decision
and permit it to determine whether the conclusion is within the range of
acceptable outcomes, the Dunsmuir criteria are met.
[Emphasis added]
Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708.
[21]
The
applicant submitted several arguments in an attempt to show that the decision
rendered by the panel was unreasonable. After carefully examining the panel record
and hearing transcript, I cannot concur with the applicant’s arguments.
[22]
The
panel based itself on the vague and imprecise nature of the applicant’s
testimony. As previously mentioned, she had a great deal of difficulty stating
the location of Imam Ali’s mosque, even thought she had lived in the same
neighbourhood since 1996, and the last name of the Lajna organization’s
president, the different positions within the organization, the names of the
other members of the organization, and the names of the people who were at her
home when Imam Ali allegedly protested in front of her house.
[23]
The
panel was also entitled to draw an adverse inference from the late amendment she
made to her PIF indicating that she was secretary of the Lajna organization,
especially since she did not justify her failure to provide such information on
her initial PIF.
[24]
It
is erroneous to claim that the panel disregarded the discrimination and
persecution suffered by the Ahmadis in Pakistan. The panel mentioned at the
outset that the organization to which Imam Ali belongs is known for targeting
and persecuting the Ahmadis, and admitted that the applicant may well have been
targeted by the Imam (Reasons, at paragraphs 2 and 9). An attentive reading of
the transcript reveals that the panel was familiar with the situation
experienced by the Ahmadis in Pakistan.
[25]
It
was, however, the applicant’s responsibility to establish a link between the
general situation of the Ahmadis and her personal fear, which she did not succeed
in doing. In accordance with Rule 7 of the Rules, it is the applicant’s responsibility
to prove the allegations contained in her account. However, she did not
discharge that burden. Not only was her account vague, but she did not produce
any documentary evidence establishing that Imam Ali exists or that the
incidents reported occurred.
[26]
As
this Court has mentioned, the panel can raise the absence of relevant
documentary evidence if it finds contradictions or inconsistencies in an
applicant’s testimony (Meija v Canada (Minister of Citizenship and Immigration),
2009 FC 1091 (available on CanLII)). Similarly, the presumption of truth
attached to testimony under oath does not prevent the panel from assessing the
applicant’s credibility:
It is true that an applicant’s testimony must
be presumed true unless there are valid reasons for rebutting that presumption
(Maldonado v. The Minister of Employment and Immigration, [1980] 2 F.C.
302 at page 305 (C.A.)). That being said, it was open to the panel to question
the applicant to assess his credibility. The presumption of truthfulness does
not exempt an applicant’s evidence from the panel’s assessment. In other words,
an applicant will be given the benefit of the doubt only to the extent that the
panel is satisfied with the applicant’s credibility and has examined all of the
evidence. In that respect, the Handbook on Procedures and Criteria
for Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees specifies the following:
203. . . . it is hardly possible for a refugee to “prove” every part of
his case and, indeed, if this were a requirement the majority of refugees would
not be recognized. It is therefore frequently necessary to give the applicant
the benefit of the doubt.
204. The benefit of the doubt should, however, only be given when all
available evidence has been obtained and checked and when the examiner is
satisfied as to the applicant's general credibility. The applicant's statements
must be coherent and plausible, and must not run counter to generally known
facts.
Morales v. Canada (Minister of Citizenship
and Immigration),
2011 FC 1496 at paragraph 20 (available on CanLII).
[27]
The
applicant claimed that the panel had erred by giving more weight to her ex
son-in-law’s denunciation than to her testimony under oath. Yet, the panel acknowledged
that the applicant had not claimed asylum in Canada on the first opportunity
that arose, that is in May 2006, and it agreed that the failure of a marriage
can create animosity. It noted that the ex son-in-law’s prediction nonetheless
came true, and that a denunciation based on the intention to harm, as claimed
by the applicant, does not necessarily mean that the denunciation was based on
false information. Once again, the panel did not rely solely on such
denunciation to rule out the presumption of truth, but concluded that it was
one indication among others tending to show that the applicant had fabricated
her story.
[28]
The
applicant also claimed that the panel made errors in its assessment of the
evidence. For example, the applicant maintains that the panel established an
erroneous link between her social status and the impossibility that she could
be a victim of persecution. She also claims that the panel made factual errors
by assuming that all the members of her family should be subject to persecution,
and that some members of her family still lived in the family home.
[29]
However,
an attentive reading of the panel’s reasons reveals that the panel dealt with
the social status and financial resources of the applicant’s family, not to
preclude the possibility that she was a victim of persecution, but rather to
question her claim that she could not obtain any protection from the
authorities. The panel wrote the following to that effect:
17. In addition the panel
also finds it implausible that the claimant could not receive some form of
police protection. The area that the claimant lived in is a very prosperous
area and the security is provided by the military. The claimant’s husband is a
retired Major in the military and one of her sons is an active Major stationed
in Rawalpindi.
Reasons, at para. 17
[30]
Furthermore,
I cannot concur with the applicant’s claims that the panel made an error of
fact by presuming that the other members of her family also had to be subject to
persecution and that it was therefore implausible that they could continue
living in the family home in Lahore. It is true that the applicant could be
more targeted because of her activities, but the panel was certainly at liberty
to believe that all members of her family were vulnerable because of their Ahmadiyya
faith and that it was therefore implausible that the applicant had to flee
while some other members of the family still lived there. It is also true that
in the amendment she provided to her PIF, she declared that no member of her
family had lived in the residence in Lahore since she left. Yet, during her
testimony, she clearly stated that one of her sons and her daughter lived there
sometimes (panel’s record, pp. 435-437).
[31]
Ultimately,
the applicant did not challenge the imprecise and implausible factors raised by
the panel, but rather expressed her disagreement with its conclusions. Yet, the
panel is the judge of facts, and is in a better position than this Court to
assess the applicant’s credibility, because it was able to see her and to hear
her. Its decision is well-reasoned and based on numerous grounds, and although
the panel did not determine each and every element of evidence submitted by the
applicant, its decision is nonetheless not vitiated (Akram v Canada (Minister
of Citizenship and Immigration), 2004 FC 629 at paragraph 15, 130 ACWS (3d)
1004).
[32]
The
ultimate question is not so much to determine whether the Court would have
rendered the same decision or accepted all the applicant’s elements of evidence,
but rather to determine whether the decision falls within “possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
cited above, at paragraph 47). In this case, there is no doubt that the
decision of the panel is reasonable.
[33]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed.
“Yves
de Montigny”
Certified
true translation
Monica
F. Chamberlain
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