Date: 20070125
Docket: IMM-1274-06
Citation: 2007 FC 87
Ottawa, Ontario, January 25,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MOBASHER
ELLAHI CHAUDHRY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated February 14, 2006, which determined that the applicant
was neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requests an order setting aside the Board’s decision and remitting
the matter for redetermination.
Background
[3]
The
applicant, Mobasher Ellahi Chaudhry, is a citizen of Pakistan who alleged a fear of
persecution because he is a Lahori Ahmadi Muslim. He also claimed to be a
person in need of protection due to a risk to his life, or a risk of cruel and
unusual treatment, punishment and torture.
[4]
The
applicant explained the nature of the persecution he faced in Pakistan in the narrative
portion of his Personal Information Form (PIF). After the government of Pakistan declared that Lahori
Ahmadi Muslims were infidels, Sunni groups, including Sipa Sahaba, began
causing trouble for them. The applicant claimed that he was an active member of
his Ahmadi mosque in April 2004, and began receiving threatening telephone
calls from Sipa Sahaba. Between May 25, 2004, and March 3, 2005, the applicant
and other Lahori Ahmadi Muslims were attacked by members of Sipa Sahaba in six
separate incidents. The applicant was often beaten and had to be hospitalized
twice. He reported the incidents to the police but received no response.
[5]
The
applicant feared being killed by his attackers and fled Pakistan with the help of an
agent in March 2005. The applicant arrived in Canada on March 18, 2005, and applied for refugee
status on March 23, 2005. The refugee hearing took place on January 17, 2006. Included
with his documentary evidence was a letter from the main Lahori Ahmadi Center (the Center), which
confirmed his religious affiliation. The applicant’s refugee hearing had twice
been postponed in order to await the results of an Acquisition of Information
Form (AIF), which had been requested from the Canadian High Commission in Islamabad in order to confirm the
veracity of the letter. During the hearing, the parties agreed to a further
adjournment in order to obtain verification of the letter. The AIF results were
received on January 18, 2006, and revealed that the letter was fraudulent.
[6]
In
his post-hearing submissions, the applicant explained that the letter was
written by a volunteer who misrepresented his capacity to issue letters on
behalf of the Center and had attempted to extort his father. The applicant
attempted to submit to the Board a second letter from a Lahori Ahmadi official
which both confirmed his religious affiliation and corroborated his explanation
regarding the fraudulent nature of the first letter. However, the Board refused
to wait for this letter before rendering its decision. By decision dated
February 14, 2006, the Board rejected the applicant’s claim on the basis that
he lacked credibility. This is the judicial review of the Board’s decision.
Board’s Reasons
[7]
The Board’s
reasons are reproduced below.
These
are the reasons I reject the refugee claim of Mobasher Ellahi Chaudhry a
39-year-old citizen of Pakistan. The claimant alleges that due to his religion
as a Lahori Ahmadi, he has faced persecution in the past and there is a serious
possibility he will face other serious harm should he return to Pakistan.
Determination
The
response to the Acquisition of Information Report, Exhibit R-3 satisfies me
that the claimant’s assertion that he is a Lahori Ahmadi is not credible. Since
this is the core of his claim, I reject the claim.
Analysis
At
the hearing, counsel, the Refugee Protection Officer and myself agreed that
identity as a Lahori Ahmadi was the core of this claim. It was further agreed
that we should wait for the response to the request to verify the Ahmadi
letter.
After
a review of that response, I am satisfied that it is more probable than not
that the letter found in Exhibit C-2, item 1 is in fact fraudulent. Further I
am satisfied that again it is more probable than not that the claimant was
aware this letter was fraudulent when he presented it to the Board to establish
his identity as a Lahori Ahmadi. This second finding is supported by his
stance during the hearing that his father had recently spoken to the religious
authorities at the Institute of Islam New Garden. The claimant assured the
panel the letter had been verified. In light of the response this could not be
the case.
The
evidence before me satisfies me that the claimant is prepared to submit a false
document to support his claim and further give false evidence.
Counsel’s
Submissions
Counsel
submitted, supported by a statement by the claimant, that the claimant obtained
the original letter in good faith from the parent organization.
My
only response is that if a letter to support the claimant’s religious identity
is to be given any weight, it must come from a source that has some knowledge
of the facts contained in the letter. The claimant is now saying that the
person who wrote the original letter did not know the claimant or his role in
his faith. This being the case I am still satisfied the claimant knew the
original letter was fraudulent at the time he presented it to the Board.
I
reject counsel’s request that I wait for further letters from Lahore. Having found this letter to be non genuine and that the
claimant is prepared to put non genuine evidence before the Board, I am
satisfied the claimant is not credible.
Issue
[8]
The
applicant submitted the following issue for consideration:
1. Did the Board make a
capricious or perverse credibility finding, without due regard to the evidence
properly before it?
[9]
I
would restate the issue as follows:
1. Did the Board err in finding
that the applicant lacked credibility?
Applicant’s Submissions
[10]
The
Board based its negative credibility finding upon the fact that the first
letter in support of his religious affiliation was fraudulent. It was submitted
that the Board ignored the applicant’s reasonable explanation and refused to
accept a second letter from the Center which explained the circumstances that
led them to inform the Canadian High Commission in Islamabad that the first letter
was not genuine.
[11]
In
his post-hearing submissions, the applicant submitted an affidavit which
explained that while he regularly attended a local Lahori Ahmadi place of
worship, he believed that a letter from the main office would be more
authoritative. His father contacted the Center in Lahore and requested a letter
confirming his son’s religious affiliation and asked that his son’s religious
background be confirmed through a local Lahori Ahmadi scholar. The person who
answered the telephone was a volunteer who misrepresented himself as the person
responsible for writing letters on behalf of the Center. The volunteer also
demanded a large donation, which the applicant’s father refused to pay.
Following the failure of his extortion attempt, the volunteer issued the
letter.
[12]
When
the verification process revealed that the letter was not genuine, the
applicant contacted the Center and was informed that the person who wrote the
letter was a fraud. A second letter from a local scholar was issued which both
confirmed the applicant’s religious affiliation and corroborated his
explanation regarding the first letter. Counsel informed the Board that the
second letter had been mailed and requested the opportunity to submit it as
post-hearing evidence. However, the Board refused to wait for the second
letter.
[13]
The
Board found it implausible that the applicant had submitted the first letter in
good faith, without knowing that it was fraudulent. The applicant submitted
that this implausibility finding was erroneous. It was submitted that such
implausibility findings are open to judicial review when the inferences drawn
are so unreasonable as to warrant judicial intervention (see Aguebor v. Canada
(Minister of Employment and Immigration) (1993), 160 N.R. 315, 42 A.C.W.S.
(3d) 886 (F.C.A.); Giron v. Canada (Minister of Employment and
Immigration) (1992), 143 N.R. 238, 33 A.C.W.S. (3d) 1270 (F.C.A.)).
[14]
The
applicant submitted that the Board proceeded in a patently unreasonable fashion
when it denied counsel’s request to re-open the hearing and allow the applicant
the opportunity to confirm his religious identity through oral testimony, since
religious identity was central to his claim.
Respondent’s Submissions
[15]
The
respondent submitted that the Court should not intervene in the Board’s
decision unless it was based upon an erroneous finding of fact made in a
perverse or capricious manner or without regard to the material (see Federal
Courts Act, R.S.C. 1985, c. F-7, paragraph 18.1(4)(d); Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982,
160 D.L.R. (4th) 193).
[16]
The
respondent submitted that pursuant to subsection 170(a) of IRPA, the Board may
inquire into any matter it considers relevant to establishing whether a claim
is well founded. It was submitted that the applicant was responsible for
producing all documents required by the rules of the Board, including those
establishing identity (see rule 7 of the Refugee Protection Division Rules,
S.O.R./2002-228). The respondent noted that refugee claimants who do not
provide acceptable documents must explain why such documents were not submitted
and what steps were taken to obtain them. It was submitted that a lack of
acceptable documents without a reasonable explanation for their absence or the
failure to take steps to obtain them was a significant factor in assessing
credibility.
[17]
The
respondent submitted that the applicant’s identity as a Lahori Ahmadi Muslim
was the core of his claim and that inquiries were made to verify the letter
establishing his religious affiliation. The letter was found to be fraudulent
and the Board concluded that the applicant was aware of this fact. The
respondent submitted that the Board clearly explained its findings on this
point and that the applicant failed to demonstrate that it had committed a
reviewable error.
[18]
The
respondent noted that the applicant was given an opportunity to respond to the
results of the verification; however, the Board found his explanations to be
implausible. It was submitted that the Board therefore did not ignore the
applicant’s explanations. The respondent submitted that this conclusion was
open to the Board (see Aguebor above). It was submitted that the Board
was entitled to reject corroborative evidence where it was unclear whether the
author had first hand knowledge of the situation (see Rani v. Canada
(Minister of Citizenship and Immigration) (2006), 145 A.C.W.S. (3d) 498,
2006 FC 73).
[19]
The
respondent submitted that the Board was entitled to reject the applicant’s
documentation, or to give it no probative value, especially in light of the
results of the AIF. It was submitted that it was open to the Board to prefer
the evidence obtained in the AIF, as the Canadian High Commission was impartial
and disinterested in the outcome of the hearing. The respondent submitted that
the Board’s decision was supported with ample reasons which explained its
conclusion that the applicant had not established his identity, and that it
therefore did not err in law. It was submitted that once it was determined
that the applicant had failed to put forward convincing evidence regarding his
identity, it was not possible for the Board to examine the risk to his life or
of persecution if returned to Pakistan (see Husein v. Canada (Minister of
Citizenship and Immigration) (1998), 80 A.C.W.S. (3d) 619).
Analysis and Decision
Standard of Review
[20]
It
is well established that the standard of review applicable to the Board’s
credibility findings is patent unreasonableness (see Juan v. Canada (Minister of
Citizenship and Immigration), 2006 FC 809). Therefore, a reviewing Court
will only intervene with the Board’s credibility finding if it was made
capriciously or was based on erroneous findings of fact.
Issue
[21]
Did
the Board err in finding that the applicant lacked credibility?
The Board’s finding that the
applicant lacked credibility was based upon: (1) the fact that the letter
confirming the applicant’s religious affiliation was fraudulent; and (2) the
determination that he knowingly submitted false evidence to the Board. The
Board supported its finding that the applicant had knowingly submitted
fraudulent evidence by noting that he had testified that his father had
confirmed with the Center that the letter was genuine, when the letter turned
out to be fraudulent.
[22]
However,
upon closer examination of the evidence, it does not appear that the applicant
necessarily knew that the letter was fraudulent. In his affidavit, the
applicant explained that when he first contacted the Center, an individual
named Javed Mirza indicated that he was responsible for issuing letters confirming
one’s religious affiliation as a Lahori Ahmadi Muslim. The applicant explained
that Mr. Mirza attempted to extort money from him, but eventually agreed to
issue the letter. This letter was then submitted to the Board. The applicant
stated that in early October 2005, his father informed him that he had
contacted the Center and had been advised by Mr. Mirza that a request to verify
the letter had been received and a response would be prepared. The applicant
testified that Mr. Mirza told his father that the Center would confirm his
status as a genuine Lahori Ahmadi.
[23]
Therefore,
it appears that the reason why the AIF request determined that the letter was
fraudulent was because it was issued by Mr. Mirza, who was unauthorized to send
it. Mr. Mirza was also the individual who provided the applicant’s father with
false information regarding the Center’s confirmation of the letter. In my
view, it appears that the applicant was at all times under the impression that
the letter was genuine and would confirm his religious identity. The Board
therefore reached a conclusion that was not supported by the evidence when it
determined that the applicant lacked credibility because he had knowingly
submitted false evidence. This is especially the case in light of the fact that
the applicant was not permitted to submit a second letter confirming his story,
nor given the opportunity to reopen the hearing.
[24]
In
my view, although the letter turned out to be fraudulent, the applicant’s
post-hearing submissions and affidavit provided the Board with an adequate
explanation of the situation. Having reviewed the evidence, it does not appear
that the applicant knowingly submitted fraudulent evidence to the Board. Had
the Board waited for the second letter to arrive or simply reopened the
hearing, the applicant would have been provided with an adequate opportunity to
present his entire case.
[25]
As a
result, I find that the Board’s negative credibility finding was patently
unreasonable and the application for judicial review is allowed and the matter
is referred to a different panel of the Board for redetermination.
[26]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[27]
IT
IS ORDERED that the
application for judicial review is allowed and the decision of the Board is set
aside and the matter is referred to a different panel of the Board for
redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The
relevant statutory provisions of the Federal Courts Act, R.S.C. 1985, c.
F-7 are as follows:
|
18.1 . . .
(4) The
Federal Court may grant relief under subsection (3) if it is satisfied that
the federal board, commission or other tribunal
(a) acted
without jurisdiction, acted beyond its jurisdiction or refused to exercise
its jurisdiction;
( b) failed to
observe a principle of natural justice, procedural fairness or other
procedure that it was required by law to observe;
(c) erred in
law in making a decision or an order, whether or not the error appears on the
face of the record;
(d) based its
decision or order on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it;
(e) acted, or
failed to act, by reason of fraud or perjured evidence; or
(f) acted in
any other way that was contrary to law.
|
18.1
. . .
(4)
Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue que l'office fédéral, selon le cas:
a)
a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;
b)
n’a pas observé un principe de justice naturelle ou d’équité procédurale ou
toute autre procédure qu’il était légalement tenu de respecter;
c)
a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci
soit manifeste ou non au vu du dossier;
d)
a rendu une décision ou une ordonnance fondée sur une conclusion de fait
erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments dont il dispose;
e)
a agi ou omis d’agir en raison d’une fraude ou de faux témoignages;
f)
a agi de toute autre façon contraire à la loi.
|
The relevant
statutory provisions of the Immigration and Refugee Protection Act, S.C.
2001, c.27 are as follows:
|
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.
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.
170. The Refugee Protection Division, in
any proceeding before it,
(a) may
inquire into any matter that it considers relevant to establishing whether a
claim is well-founded;
. . .
|
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.
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.
170.
Dans toute affaire dont elle est saisie, la Section de la protection des
réfugiés:
a)
procède à tous les actes qu’elle juge utiles à la manifestation du bien-fondé
de la demande;
. .
.
|
The relevant
statutory provisions of the Refugee Protection Division Rules, S.O.R./2002-228
are as follows:
|
7. The claimant must provide acceptable
documents establishing identity and other elements of the claim. A claimant
who does not provide acceptable documents must explain why they were not
provided and what steps were taken to obtain them.
|
7.
Le demandeur d'asile transmet à la Section des documents acceptables pour
établir son identité et les autres éléments de sa demande. S'il ne peut le
faire, il en donne la raison et indique quelles mesures il a prises pour s'en
procurer.
|
Email this Content