Docket: IMM-710-11
Citation: 2011 FC 1330
Ottawa, Ontario, November 21, 2011
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
|
|
MUHAMMAD ZAHID KHAN
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
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 (the Act) for judicial review of the
decision rendered by the Refugee Protection Division of the Immigration and
Refugee Board dated January 21, 2011, refusing the applicant’s refugee claim to
be deemed a Convention refugee or a person in need of protection under sections
96 and 97 of the Act.
Factual Background
[2]
Mr.
Muhammad Zahid Khan, the applicant, is a citizen of Pakistan.
[3]
In
September of 2000, the applicant claims to have left Pakistan to begin
work as a seaman. The applicant alleges that he travelled to the United
States
without a passport using his seaman’s book, which he subsequently left on the
ship upon his arrival. The applicant submits that he lived illegally in the United
States
between 2001 and 2006.
[4]
The
applicant was ordered to leave the United States voluntarily in
September of 2004, February of 2005 and August of 2005 by the American
immigration authorities. He alleges that he left the United States in September
of 2006 and re-entered Pakistan.
[5]
Upon
his return to Pakistan –
specifically the Swat region – the applicant contends that he immediately
became the target of the Taliban. He was ordered to speak against the Western
World and was persecuted due to the fact that he had installed a satellite dish
on his roof. The applicant claims that he was visited by a member of the
Taliban who insisted he remove the satellite dish as it was a source of
obscenity and brought sin to the village.
[6]
The
applicant submits that he was persecuted in Pakistan and travelled to Canada on a
fraudulent passport. He arrived in Toronto on December 12, 2006.
He does not have evidence to substantiate this claim as he maintains that he
returned the fraudulent passport in question to his smuggler.
[7]
The
applicant then applied for asylum in Montreal in January of 2007 and
filed the Personal Information Form on February 2, 2007.
[8]
The
applicant’s claim was heard by the Refugee Protection Division of the
Immigration and Refugee Board on June 4, 2010, September 27, 2010 and November
26, 2010. The Board rendered its decision on January 21, 2011 and rejected the
applicant’s claim.
Decision
under Review
[9]
In
its decision, the Board stated that it had serious reasons to doubt the
applicant’s testimony in light of the numerous inconsistencies and
implausibilities that riddled his story. Essentially, the Board found that
there were four central groups of failings in the applicant’s credibility:
those centered upon his allegations of persecution, those concerning his
departure from Pakistan in 2000, those mentioning his alleged return to
Pakistan in 2006, and finally, those surrounding his alleged travel from Pakistan to Canada.
[10]
Firstly,
with regard to the applicant’s story that he was persecuted and threatened with
death after installing a satellite dish, the Board found that this account was
implausible for several reasons. Essentially, the applicant admitted that
though other individuals had installed satellite dishes, they were not
persecuted because their dishes were hidden. The Board stated that this
explanation was unreasonable due to the fact that an antenna must be placed out
in the open in order to work.
[11]
Secondly,
the Board found inconsistencies with the applicant’s story regarding his
departure from Pakistan in September of 2000 and entry into the United
States.
The Board concluded that the applicant did not corroborate this allegation by
providing documentation. The Board also noted that there was evidence
contradicting this allegation in his most recent passport issued in 2006 by the
Pakistani Embassy in the United States. A stamp on page 7 of
the passport indicates that it replaced a pre-existing passport that the
applicant had submitted to the Embassy, which was issued in Swat, Pakistan in March of
2001. Moreover, the stamp indicated that the 2001 passport was bearing a valid
visa and that the applicant had travelled to the United States with that
passport and visa. However, the applicant maintained that he was already in the
United
States
in 2001. As a result, the Board found that the applicant’s explanation was not
credible.
[12]
Thirdly,
the Board found that the applicant’s story regarding his return to Pakistan in October
of 2006 was also fraught with implausibilities. As evidence for this trip, the
applicant produced his passport which revealed an entry stamp. However, at the
hearing, the Minister of Citizenship and Immigration (respondent) produced an
expert report from the Canadian Border Service Intelligence Unit affirming that
the passport was authentic but the stamp was a counterfeit, as it did not match
the sample of the stamp used by the Pakistani Immigration Officer number 5 at
the Islamabad point of entry. For his part, the applicant submitted that the
sample of the stamp in question provided by the Canadian Border Service
Intelligence Unit dated from February 2006 – not from October 2006 – and
therefore he argued that it was reasonable to conclude that the stamp could
have changed over time.
[13]
Nevertheless,
the Board maintained that it did not accept the applicant’s story regarding his
return to Pakistan due to the fact that other factors detracted from his
credibility – namely their concerns over his allegations regarding his
deportation from the United States and certain questions raised by his National
Identity Card. Consequently, in light of the applicant’s lack of credibility
and the evidence submitted on the prevalence of counterfeit stamps in Pakistan, the Board
concluded that the applicant’s stamp was indeed a counterfeit.
[14]
Finally,
the Board found that the applicant’s account of his travel from Pakistan to Canada lacked
credibility. The Board came to this conclusion based on the applicant’s lack of
documentation proving his entry into Canada. Also, the Board noted
that he did not ask for refugee status at the airport in Toronto but only
weeks later when he travelled to Montreal.
[15]
The
Board concluded that the applicant had never in fact returned to Pakistan. As a
result, the Board found that the applicant had no credible or reasonable fear
of persecution in Pakistan and therefore could not claim to be a
Convention refugee or a person in need of protection under the Act.
Issue
[16]
The
issue in this case is the following:
Was
it unreasonable for the Board to make the factual findings that it did?
Statutory Provisions
[17]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A Convention refugee is a person who, by reason
of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries
of nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
(b) not having a country of nationality, is
outside the country of their former habitual residence and is unable or, by
reason of that fear, unwilling to return to that country.
|
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention —
le réfugié — la personne qui, craignant avec raison d’être persécutée du fait
de sa race, de sa religion, de sa nationalité, de son appartenance à un
groupe social ou de ses opinions politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
|
|
Person in need of protection
97. (1) A person in need of protection is a person in
Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial
grounds to exist, of torture within the meaning of Article 1 of the
Convention Against Torture; or
(b) to a risk to their life or to a risk
of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
Person in
need of protection
(2) A person in Canada who is a
member of a class of persons prescribed by the regulations as being in need of
protection is also a person in need of protection.
|
Personne à protéger
97. (1) A qualité de personne à protéger la personne
qui se trouve au Canada et serait personnellement, par son renvoi vers tout
pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans
lequel elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à
protéger
(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
|
Standard of Review
[18]
Pursuant
to the cases of Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 (Dunsmuir) and Aguebor v Canada (Minister of Employment &
Immigration) (FCA), [1993] FCJ No 732, 160 NR 315 (Aguebor),
the standard of review which applies to findings of
fact made by the Board, including credibility issues, is that of
reasonableness. The Court must therefore exercise deference with regards to the
Board’s determination.
Analysis
[19]
This
judicial review is entirely centered on the question of the applicant’s
credibility.
[20]
The applicant maintains that the Board erred in fact and in
law and rendered an unreasonable decision in light of his testimony and the
documentation submitted.
[21]
The
applicant also contends that he has provided no contradictions in his story and
that the Board was unreasonable in its appreciation of the facts and the
evidence.
[22]
The
Court cannot agree with the applicant as he failed to provide evidence
regarding the following: his presence in Pakistan at the time of the alleged
persecution; his whereabouts between Pakistan, the United States and Canada to claim
protection; his return to Pakistan in 2006; and, his entry into the United
States
and Canada.
[23]
More
particularly, the Court agrees with counsel for the respondent that the
applicant’s account of his entry could not be viewed as credible. The applicant
was issued a passport in Pakistan in March of 2001 when he was allegedly
already in the United States. The applicant denied having used the
passport to travel. He alleged that a friend forwarded the passport to him in
the United
States.
However, the Board found that credible evidence indicated that this passport
contained a valid visa. Further, no explanation was provided by the applicant
regarding this valid visa. Based on this evidence, it was reasonable for the
Board to reject the applicant’s allegation that he had never travelled with the
passport.
[24]
In
any event, the Court notes that the applicant’s 2001 passport is inadmissible
at this stage as it was not submitted to the Board at the time of the hearing.
It is trite law in judicial review that, absent special circumstances, parties
may not adduce evidence which was not before the decision-maker (Vong v
Canada (Minister of Citizenship and Immigration), 2006 FC 1480, [2006] FCJ
No 1870).
[25]
The
applicant also submits that he returned to Pakistan in 2006 with
a stamp in his passport. However, based on the evidence, the validity of the
stamp is unclear and the Board found that it was unreasonable for the embassy
to issue a passport prior to issuing a National Identity Card. Also the
National Identity Card was issued in the United States in August
14, 2007 while the applicant was in Canada (Tribunal Record at p.
279).
[26]
The
events surrounding the applicant’s deportation from the United States to Pakistan also remain
unclear. The applicant explained that he did not confirm his departure with the
American authorities as he feared being sent back. However, he voluntarily
returned to Pakistan.
[27]
The
applicant alleges that he travelled back from Pakistan to Toronto but no
evidence of a passport, airplane ticket or other documentation was adduced by
the applicant.
[28]
It
was thus reasonable for the Board to conclude that the applicant did not
demonstrate that he had returned to Pakistan in 2006.
[29]
Finally,
the Court is of the view that the Board’s finding with respect to the satellite
dish is reasonable. Indeed, why would the claimant be persecuted by the Taliban
for having a satellite dish while other owners of satellite dish and, more
importantly, the merchants remained undisturbed? The Court is also of the view
that the difference in the use of the word “satellite dish” or “antenna” is not
material in this case.
[30]
The Court recalls that pursuant to
the case of Aguebor, it is the Board that is in the best position to
assess the credibility of a refugee claimant, and it should only be overturned
in the clearest of cases.
[31]
More
recently, in
the case of Mahdoon v Canada (Minister of Citizenship
& Immigration), 2011 FC 284, [2011] FCJ No 371, Justice Shore
stated the following:
[1] Plausibility and
credibility findings are within the domain of specialized tribunals.
[2] The Immigration and
Refugee Board’s (IRB) Members are considered to be specialized in the
subject-matter of cases before them as well as in the context of country
conditions in which the subject-matter finds itself.
[3] First-instance
decision-makers from the IRB are to examine, thus, scrutinize, and, then, to
provide reasons to demonstrate consideration of each significant part of each
case; and, then, to demonstrate consideration of a sum of all parts of a case,
even if only in summary fashion, but enough by which to motivate each decision.
[4] If the reasons and
conclusions of the specialized members are considered reasonable, on the basis
of the facts, and correct, in respect of legal provisions, then due deference
should be accorded to such specialized decisions.
(Emphasis
in original)
[32]
The Court also reminds that there is a presumption that the
Board considered all the evidence and that there is no requirement for it to
mention each document submitted by the parties. In
the present case, the Court is of the view that the Board did not fail to
address relevant evidence.
[33]
Despite
counsel for the applicant’s able arguments, the Court finds that the Board’s
decision was reasonable in light of all the circumstances of the case. The
decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir). Therefore, this judicial
review application will be dismissed. No question was proposed for
certification and there is none in this case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review be dismissed. No question for
certification.
“Richard
Boivin”
Email this Content