Docket: IMM-5800-11
Citation: 2012 FC 259
Ottawa, Ontario, February 24,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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IFTIKHAR ALI and NASEEM KAUSER
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Applicants
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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]
The
applicants seek judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board), dated August 5, 2011,
which held that the applicants were not Convention (United Nations’
Convention Relating to the Status of Refugees, [1969] Can TS No 6) refugees
or persons in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, 2001, c. 27 (IRPA). For the reasons that
follow, the application is granted.
Facts
[2]
The
applicants, Iftikhar Ali and Naseem Kauser, are citizens of Pakistan. The principal
applicant, Iftikhar Ali (applicant), alleges that he and his family face
persecution by his brother and the Sunni religious extremist group Sipah-e-Sahaba
(SSP).
[3]
The
applicant was raised as a Sunni Muslim, but over time, as he was exposed to
Shia Islam by friends and work colleagues, he accepted that both Sunni and Shia
Muslims are true Muslims. He and his family attended Shia ceremonies, and in
February 2008, he decided to formally convert to Shia Islam.
[4]
The
applicant testified before the Board that shortly after his conversion Mullah
Rashid from the SSP confronted him for converting, stating that all Shias are
infidels. The applicant was not dissuaded from his commitment to the Shia
faith.
[5]
The
applicant testified that on March 14, 2008, his son was attacked and beaten by
three men while riding the applicant’s motorcycle. The men denigrated the Shia
faith and said that if it had been the applicant on the bike, he would have
been killed. The applicant took his son to the police, but they initially
refused to register a report. Only after returning several times did the
applicant succeed in convincing the police to register the report.
[6]
Two
members of the SSP visited the applicant in May 2008 and threatened him if he
did not renounce the Shia faith. After this incident, the applicants and their
children left their home in Sheikhupura and stayed with relatives for two
months. The applicant was threatened by these men again in September 2008. He
reported the threats to the police but they were unwilling to help. The
applicant sent his wife and children to live with relatives, and kept his
children out of school for their safety.
[7]
The
applicant states that when his relatives discovered he had converted, they told
him if he did not renounce the Shia faith, he would be disowned and
disinherited. When he refused, the family posted an advertisement in the newspaper
that he had been disowned - a copy of this advertisement was submitted to the
Board.
[8]
On
March 23, 2009, the applicant stated that two men attempted to set his factory
on fire. The security guard saw two men fleeing the scene. The fire was
quickly controlled, but some of his equipment was damaged. The applicant again
went to the police, but they refused to investigate, stating that it was
probably a short circuit that caused the fire. The applicant spoke to a
journalist at the police station about the incident and it was reported in the
newspaper - the article was also submitted to the Board.
[9]
In
May 2009, the applicant’s brother and members of the SSP confronted the
applicant at his in-laws’ home, and assaulted him. The applicant went to the
doctor to treat his injuries, including damage to two of his teeth. The
applicant’s relatives also told him that armed men were waiting at his house in
Sheikhupura. The applicant then arranged for him and his wife to travel to Canada. He testified that he spread
word that his children were also coming to Canada, so that no one would suspect they were
staying behind, with a friend in Lahore. The applicants arrived in Canada on October 13, 2009 and
made claims for refugee protection in January 2010.
Decision Under Review
[10]
The
Board found that the applicants were not Convention refugees or persons in need
of protection. The determinative issue for the Board was credibility. The
Board drew several negative credibility findings, on the following grounds:
a. The applicant failed to
provide the original medical note from his doctor’s visit following the May
2009 attack; instead, he only provided a note written by the doctor on April
10, 2011 - this note did not explain how the doctor remembered treating the
applicant or how he sustained the injuries.
b. A letter from the
President of the Jaffaria Trust in Faisalabad (which confirmed that the applicant converted
to the Shia faith) did not provide any details on what the applicant did to
convert or how long the process took. The applicant had also provided no
documentation of involvement with the Shia faith prior to his conversion.
c. A letter from the
Al-Eman Society of Canada did not indicate that it
was a Shia organization or specify the applicant’s involvement.
d. The Board did not find
it credible that the applicant would continue to work in Lahore until October 2009 if
he was at risk as of May 2009 or earlier.
e. The Board did not
believe the applicant’s story that his factory was set on fire and the police
refused to investigate. The Board noted that the applicant did not take
photographs of the damage to assist the police or the Board. The Board also
noted that the applicant claimed there was little fire damage as the fire was
controlled, but the alleged damage was to the inside of his business and to the
embroidery machines totaling 50,000 rupees.
f.
The
Board did not find it credible that the applicant’s children, who also
allegedly converted to the Shia faith, had experienced no problems living in Lahore since May 2009.
g. In the applicants’
initial forms claiming refugee protection, they did not specifically mention
their conversion from Sunni to Shia. Their response to who they are afraid of
was: “The Sepa Sahaba and Sunni’s religious extremists.” Their response to why
they were asking for protection was: “My life is at risk in Pakistan and there is no
protection available to me in my country. Therefore I am asking for Canada’s protection.”
[11]
The
Board acknowledged the evidence of religious violence between Sunni Muslims and
religious minorities. However, based on the above findings, the Board was
unconvinced that the applicants were converted Shias. The claims were
therefore rejected.
Issue
[12]
The
only issue raised by this application is whether the Board’s credibility findings
were reasonable (Dunsmuir v New Brunswick, 2008 SCC 9).
Analysis
[13]
I
agree with the applicant that the Board’s credibility findings were
unreasonable. While the Board is entitled to deference in its credibility
findings, in this case the Board did not base those findings on inconsistencies
or discrepancies in testimony, which the Board is best placed to assess. Instead,
the Board based its findings solely on deficiencies in the supporting
documentary evidence and alleged implausibilities, none of which in my view
were supportable. The decision should therefore be set aside.
[14]
It
is settled law that when a claimant swears to the truth of his testimony, that
testimony is presumed to be true unless there is a valid reason to doubt its
truthfulness: Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302. Thus,
it is an error for the Board to arbitrarily disbelieve a claimant’s testimony
without a valid reason for doing so.
[15]
In
this case, the applicant’s evidence was consistent throughout and was also
supported by relevant documentary evidence. The majority of concerns
identified by the Board relate to perceived deficiencies in the supporting
evidence, for example, that the applicant could only provide a new medical note
about his hospital visit instead of the original, and the insufficient detail
in letters of support from Muslim organizations both in Pakistan and Canada. However, this
documentary evidence corroborated the applicant’s claims. The Board cannot
find the applicant not credible just because the documents did not contain all
the details the Board would have preferred, particularly where the Board has
identified no inconsistencies in the applicant’s evidence or between the
applicant’s evidence and the documents.
[16]
In
its analysis of the evidence in respect of conversion, the Board repeatedly
conflated the issue of the sufficiency of evidence with its veracity or
authenticity. They are distinct concepts. Evidence which is not believed
because it is fabricated, in the case of documentary evidence, or implausible
in the case of oral evidence, is given no weight. Documentary evidence or oral
testimony, on the other hand, which is accepted as authentic or truthful, may
nonetheless be of insufficient probative value to establish a claim. It may
leave the evidentiary burden undischarged. Here, the Board repeatedly confused
the two concepts, drawing negative credibility findings about the applicant in
respect of documents whose provenance or authenticity was not questioned.
[17]
The
few alleged inconsistencies or implausibilities identified by the Board are
unsupported by the evidence. The Board appears to find the applicant’s claim
that there was “little” fire damage inconsistent with the fact that the fire
apparently caused 50,000 rupees’ worth of damage. However, the transcripts
show that the applicant testified that this equaled about $700-800 dollars’
worth of damage. I find it unreasonable to rely on this as an inconsistency particularly
given the fact that the applicant submitted a newspaper article confirming that
the fire occurred.
[18]
The
Board also found it implausible that the applicant’s children had experienced
no problems since converting to the Shia faith. However, as the applicant
submits, the Board failed to consider the applicant’s testimony containing an
unchallenged explanation for this; namely, that he spread the word that his
children had left the country with him and that his children were currently
living secretly with a friend.
[19]
Finally,
I find it perverse and capricious for the Board to rely on the fact that the
applicants’ initial port of entry form did not explicitly state that they
converted from Sunni to Shia. That form expressly instructs claimants to be
brief as they will have the opportunity to provide further details later. The
applicants listed “The Sepa Sahaba and Sunni’s religious extremists” as the
persons they feared if returned to Pakistan. That brief statement makes the basis for
their claim sufficiently clear and is consistent with their more detailed
allegations. A negative credibility finding on this basis appears to me to
reflect a zeal to discredit the applicant, which is contrary to the presumption
of truthfulness of testimony discussed by the Federal Court of Appeal in Maldonado,
above.
[20]
The
application for judicial review is granted. The matter is referred back to the
Immigration Refugee Board for reconsideration before a different member of
the Board’s Refugee Protection Division. No question for certification has
been proposed and the Court finds that none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted. The
matter is referred back to the Immigration Refugee Board for reconsideration
before a different member of the Board’s Refugee Protection Division. No
question for certification has been proposed and the Court finds that none
arises.
"Donald
J. Rennie"
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