Date: 20080407
Docket: IMM-608-07
Citation: 2008 FC 449
Ottawa, Ontario, April 7, 2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
MUHAMMAD SHEHZAD KHOKHAR and
NAJMA SHEHZAD KHOKHAR
Applicants
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,
S.C. 2001, c. 27 (Act), for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee Board
(Board) dated January 10, 2007 (Decision), wherein the Board determined that
the Applicants were not Convention refugees under section 96 of the Act or persons
in need of protection under section 97 of the Act.
BACKGROUND
[2]
The
Principle Applicant, Muhammad Shehzad Khokhar, and his wife, Najma Shehzad
Khokhar, are citizens of Pakistan. They are members of
different tribes. They claim an alleged fear of persecution by the wife’s powerful
family that traditionally requires marriage within the larger family.
[3]
The
Applicants claim they were beaten by Najma’s family members in 1989 when the
family learned of their plans to marry. Muhammad, having been threatened with
death if he didn’t leave the area, went to Rawalpindi, Pakistan, where he stayed
for two years.
[4]
In
1990, Muhammad went to Dubai for work. In May 1998, he returned to
Pakistan and the couple married in Lahore. While they were on
their honeymoon, members of Najma’s family allegedly attacked Muhammad’s parent’s
house in Lahore and asked
about the couple’s whereabouts. Having heard about the attack, the couple went
to Sialkot,
Pakistan, where they
stayed with Muhammad’s uncle. A few days later, the couple returned to Lahore. Around this
time, Najma’s family was living in the Tobatigson District of Pakistan, which
is approximately 250 kilometres from Lahore.
[5]
The
couple stayed in hiding at Muhammad’s parents’ house in Lahore.
Approximately a month and a half later, Muhammad returned to work in Dubai, leaving his
wife with his parents. Muhammad’s parents allegedly began to insult Najma and
threatened to kill her because they too disagreed with the marriage. Muhammad
took Najma to Dubai in May 2001
after learning of his parents’ treatment of her.
[6]
On
at least two occasions, the couple returned to Pakistan for vacations
and stayed in the Kasur District for approximately one month at a time. When
Muhammad’s contract in Dubai expired in August 2004, the couple returned to Pakistan to live in Lahore. In November
2004, Muhammad started a business there with a partner.
[7]
In
November 2005, some individuals armed with rifles allegedly tried to break into
the couple’s home. According to Muhammad, he noticed two of his wife’s
brothers. The couple escaped and called the police. A First Information Report was
not registered. The police allegedly took the Applicants to the police station where
they slapped and beat Muhammad and demanded a bribe of 50,000 rupees.
[8]
The
Applicants then went to Sialkot to stay with Muhammad’s distant uncle where
they each obtained visas for the United Kingdom and Canada through a
smuggler. The Applicants left Pakistan from Lahore and arrived
in Canada on April 11,
2006. They filed a claim for refugee status based on their membership in a
social group on April 19, 2006.
DECISION UNDER REVIEW
[9]
The
Board concluded that the Applicants did not have a well-founded fear of
persecution based on a Convention ground and there was not a serious
possibility that they would face a risk to life or a risk of cruel and unusual
treatment or punishment, or a danger of torture, if they returned to Pakistan.
[10]
The
Board found that, on a balance of probabilities, the Applicants’ evidence was
neither credible nor trustworthy because of inconsistencies and omissions in
their testimony, as well as a number of implausibility findings concerning their
story. In this regard, the Board found the following:
a. It was
implausible that Najma’s family, if they were against the marriage, made no
attempts to harm Najma who continued living at his parents’ residence in Lahore for almost
two years;
b. The Applicants’
allegations were untrue because they did not correspond with the country
condition documents;
c. Muhammad’s
explanation that he returned to Lahore from Dubai in 2004
because he thought everything was calm was unsatisfactory given his statement
that he still feared his wife’s parents;
d. It was not
plausible that Muhammad would fear persecution when he returned to Pakistan many times
and had no problems. The actions of Muhammad were not those of a person who had
a subjective fear;
e. It was
implausible that Najma’s family, if they intended to harm the couple because of
their marriage, would not have made an attempt to do so between the one
incident in 1998 and the incident in November 2005;
f.
The
Applicants had no police reports or newspaper articles reporting the attack on
their home in November 2005. The Board drew an adverse inference and found the
incident never happened; and
g. Muhammad
testified that he was beaten by the police. This information was not in his PIF
narrative. The Board found that Muhammad was not credible and drew an adverse
inference from the omission.
[11]
The
Board then set out the test in Thirunavukkuransu v. Canada (Minister of
Employment and Immigration) (1993), [1994] 1 F.C. 589, [1993] F.C.J.
No. 1172 (F.C.A.) (QL), and made an alternative finding that the Applicants had
an internal flight alternative (IFA) in Rawalpindi or Kasur.
[12]
The
Board then turned its mind to the emotion that Najma had shown in the hearing
when her mother’s name was mentioned during the hearing. The Board found that
the reasons Najma “broke down” was because she could not see her mother and
because she, herself, could not become a mother. The Board concluded that her
emotions did not indicate that the couple would be harmed in Pakistan by Najma’s
family because of their marriage.
[13]
In
summation, the Board found Muhammad was not credible and that his numerous
trips back to Pakistan constituted
re-availment and a lack of subjective fear. In the alternative, both Applicants
had an IFA in Rawalpindi or Kasur
District. The Board dismissed Muhammad’s claim and then rejected Najma’s claim,
as it was based on that of her husband.
ISSUES
[14]
The
Applicants raised the following issues:
(1) Did the Board
err in law by ignoring or misinterpreting evidence properly before it?
(2) Did the Board
err by making patently unreasonable findings of fact, or basing its decision on
findings of fact made in a perverse and capricious manner, without regard for
the material properly before it?
(3) Did the Board
misapply or misconstrue the definition of Convention refugee, thereby erring in
law?
(4) If the
Board’s errors were not reviewable errors of law, then did the cumulative
effect of these errors amount to an error of law?
REASONS
[15]
I
find no merit to the allegation that the Board misapplied or misconstrued the
definition of Convention refugee. The Board properly considered whether or not
there was more than a mere possibility that the Applicants would face
persecution in Pakistan. Similarly, the Board correctly identified the
burden of proof on the Applicants as being a “serious possibility” of
persecution or a risk to life, a risk of cruel and unusual treatment or
punishment, or danger of torture (Adjei v. Canada (Minister of Employment and
Immigration),
[1989] 2 F.C. 680, [1989] F.C.J. No. 67 at para. 9 (F.C.A.) (QL) [Adjei]).
Consequently, applying a standard of correctness, I find no reviewable error on
this ground.
[16]
The real
issues in this case can be rephrased as follows:
1.
Did
the Board err by making unreasonable negative credibility inferences and
implausibility findings or by ignoring or misinterpreting evidence properly
before it?
2.
Did
the Board err in finding that the Applicants had a viable IFA?
3.
If
the Board’s errors are not reviewable when taken alone, does their cumulative
effect amount to an error of law?
STANDARD OF REVIEW
[17]
In Dunsmuir v. New Brunswick, 2008 SCC 9 [Dunsmuir],
the Supreme Court of Canada reconsidered the standard of review analysis
applicable to administrative decisions and posited two standards:
reasonableness and correctness. The Court also provided guidance for
determining the appropriate standard of review in a given case:
[…] questions of
fact, discretion and policy as well as questions where the legal issues cannot
be easily separated from the factual issues generally attract a standard of
reasonableness while many legal issues attract a standard of correctness. Some
legal issues, however, attract the more deferential standard of reasonableness
(Dunsmuir at para. 51).
The Court further stated that the standard of review
analysis is composed of two steps:
First, courts
ascertain whether the jurisprudence has already determined in a satisfactory
manner the degree of defence to be accorded with regard to a particular
category of question. Second, where the first inquiry proves unfruitful,
courts must proceed to an analysis of the factors making it possible to
identify the proper standard of review (Dunsmuir at para. 62).
[18]
In the present case, the Applicant attacks the
Board’s implausibility and credibility findings. These findings are highly
factual in nature. In numerous pre-Dunsmuir decisions, this Court has
held that the appropriate standard of review was patent unreasonableness (Soosaipillai v. Canada (Minister of Citizenship and Immigration),
2007 FC 1040 at para. 9; Xu v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1701, [2005] F.C.J. No. 2127 (QL) at para. 5; Asashi
v. Canada (Minister of Citizenship and Immigration), 2005 FC 102, [2005]
F.C.J. No. 129 (QL) at para. 6; Canada (Minister of Citizenship and
Immigration) v. Elbarnes, 2005 FC 70, [2005] F.C.J. No. 98 (QL) at para.
19). In Aguebor v. Canada (Minister of Employment and Immigration),
(1993) 160 N.R. 315, [1993] F.C.J. No. 732 at para. 4 (F.C.A.) (QL), the
Federal Court of Appeal discussed the standard of review for the Board’s
determination of a claimant’s credibility, noting the high degree of deference
to be given to such determinations:
There is no
longer any doubt that the Refugee Division, which is a specialized tribunal,
has complete jurisdiction to determine the plausibility of testimony: who is in
a better position than the Refugee Division to gauge the credibility of an
account and to draw the necessary inferences? As long as the inferences drawn
by the tribunal are not so unreasonable as to warrant our intervention, its
findings are not open to judicial review.
[19]
However, the Court may intervene and set aside a
plausibility finding where the reasons that are stated are not supported by the
evidence before the Board. As stated by Justice MacKay in Yada v. Canada
(Minister of Employment and Immigration) (1998), 140 F.T.R. 264, [1998]
F.C.J. No. 37 (QL) at paragraph 25:
Where the finding of a lack of
credibility is based upon implausibilities identified by the panel, the court
may intervene on judicial review and set aside the finding where the reasons
that are stated are not supported by the evidence before the panel, and the
court is in no worse position than the hearing panel to consider inferences and
conclusions based on criteria external to the evidence such as rationality, or
common sense.
[20]
Further, in evaluating credibility, it must be
borne in mind that a refugee claimant’s allegations are
presumed to be true unless there are reasons to doubt their truthfulness (Valtchev
v. Canada (Minister of Citizenship and Immigration) (2001), 208 F.T.R. 267,
2001 FCT 776 at para. 6 (F.C.T.D.); see also Moldonado v. Canada ( Minister
of Employment and Immigration) (1979), [1980] 2 F.C. 302, [1979] F.C.J. No.
248 (F.C.A.) (QL) [Moldonado]).
[21]
The issue of whether or not the Board erred in
finding that the Applicants had a viable IFA is also a factual inquiry and has,
in the past, been reviewed on a standard of patent unreasonableness (see Sivasamboo
v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741, [1994]
F.C.J. No. 2018 (QL); Ramachanthran v. Canada (Minister of Citizenship and
Immigration), 234 F.T.R. 206, 2003 FCT 673; Ali v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 193; Chorny v. Canada (Minister
of Citizenship and Immigration) (2003), 238 F.T.R. 289, 2003 FC 999).
[22]
In light of the decision in Dunsmuir, and
the previous jurisprudence of this Court, I find the standard of review
applicable to these factual questions to be reasonableness. When reviewing a
decision on the standard of reasonableness, the analysis
will be concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir at para. 47).
[23]
With respect to the third issue on this
application, having consideration for the discretionary nature of the Board’s
refugee determinations and the deference afforded to such decisions on judicial
review, I am of the view that the applicable standard of review of the Decision
when reviewing it as a whole together with the cumulative effect of the errors,
if any, committed by the Board in making its determination, is reasonableness.
Before continuing, however, I note that regardless of whether I applied the
pre-Dunsmuir patent unreasonableness standard or the post-Dunsmuir reasonableness
standard to the issues in this case, my findings are the same.
1.
Did
the Board err by making unreasonable negative credibility inferences and
implausibility findings or by ignoring or misinterpreting evidence properly
before it?
[24]
The
Applicants submit that the Board’s assessment of Muhammad’s credibility was unduly
strict and onerous. They argue that the Board erred by drawing adverse
credibility findings based on the absence of attacks from Najma’s family
between 1998 and November 2005, and by drawing adverse credibility findings
because of her family’s failure to harm her while she resided in Lahore with
Muhammad’s parents. These findings, suggest the Applicants, were speculative
and wholly unsubstantiated plausibility findings. Further, the findings were
unreasonable given that the Applicants were “essentially in hiding” and being “careful,”
and because of the lack of evidence that Najma’s family was aware of her
residence during that specific time period.
[25]
I
do not agree that the Board’s findings on this issue were speculative,
unsubstantiated or unreasonable. As stated by the Board at page 4 of the
Decision:
The evidence before the panel was that
the claimant during his stay in Dubai went to Pakistan many times. He was asked if he had any
problems during those visits and he said he did not, but then went on to say
that his house had been attacked in 1998, but nothing after that. The panel
does not find that plausible that even though he alleges he had a fear, he
returned many times and also had no problems….
[26]
The
Board continued at pages 5 and 6:
When asked how far Toba-Tek-Singh [where
the alleged persecutors lived] was from Gulshan Ravi, Lahore, he said about 250 kilometers. The
claimant has returned to [Lahore] from Dubai, from the U.K. and also from Kasur
and Rawalpindi, even though he testified that his wife’s family now resides
about 250 kilometers away from that place and that he was aware of the
whereabouts of the claimant’s family’s residence.
The panel finds that the actions of the
claimant are not that of a person who has a subjective fear. His only
explanation was that he was careful. The panel does not find that explanation
satisfactory when the claimant testified that he opened a business and resided
with his wife.
The panel finds it implausible that the
family of the claimant’s wife if they intended to harm them due to their
marriage, would not have made any attempts from the one incident he alleges in
1998 to the incident in November 2005, when the claimant had returned to
Pakistan on many occasions and when the matter was in its initial stages. The
panel finds that the actions of the claimant show a lack of subjective fear and
minimizes the presence and effectiveness of the agent of persecution, which, in
this case, the claimant states are his in-laws.
[27]
Muhammad
testified that while living in Dubai, he returned to Lahore
approximately every six months. Once the couple moved to Dubai, they returned
to Pakistan on numerous
occasions and spent approximately one month in the country each year. Further, the
couple returned to Pakistan to live in Lahore once Muhammad’s contract
ended in Dubai. They also
visited the U.K. and returned
to Pakistan from the U.K.. Based on this evidence, it was not
unreasonable for the Board to conclude that the couple not only re-availed
themselves to their alleged persecutors, but that these returns were indicative
of a lack of subjective fear of persecution by Najma’s family, regardless of
Muhammad’s testimony that the couple was “essentially in hiding” and were
“careful.” Other conclusions were possible, but the Board’s conclusions cannot
be said to be unreasonable.
[28]
It
was also open to the Board to conclude that the allegations regarding Najma’s
family’s intention to harm the couple were implausible given that the family
made no attempts to harm them from 1998 to 2005. As noted above, Muhammad
returned to Pakistan on numerous
occasions from 1998 to 2004. Then, in 2004, he returned to Lahore to live.
Despite his presence in Pakistan, the family took no
action to harm Muhammad until the alleged incident in 2005, which occurred
approximately a year and a half after the couple re-established residency in Lahore.
[29]
Further,
it was open to the Board to find it implausible that the family would not harm
Najma in the initial period after the couple married. From 1998 to 2001, Najma
lived in Lahore with
Muhammad’s parents in the same residence that her family had allegedly
attacked. When asked why Najma’s family was unable to locate her during this
time, Najma explained that her family thought she was in Dubai, and added
that she did not leave the house. However, Muhammad also testified that Najma’s
family was powerful and had financial resources and political affiliations. It
was not unreasonable to assume that, given the family’s alleged power and the
previous attack on Muhammad’s parents’ home, Najma’s family would have located her
at Muhammad’s parents’ home and pursued further attacks if they had been
interested in doing so. If Najma’s family was truly adamant about killing Najma
to defend their honour, one would expect that the family would have returned to
Muhammad’s parents’ home in search of one of the claimants. Her family took no
such action. In my view, it was open to the Board to find it implausible that Najma’s
family, if they were against the marriage, made no attempts to harm her while
she continued living at that residence for almost two years. So I cannot say
that the board was unreasonable in its findings.
[30]
The
Applicants further submit that the Board erred by drawing a negative
credibility finding from the lack of corroborative police reports and newspaper
articles supporting their allegation that their home was attacked by Najma’s
family in 2005. According to the Applicants, the Board imposed an unduly
onerous standard of proof upon them.
[31]
In
considering this argument, I have to remember that the burden of proving a
claim for refugee protection rests with the claimant (Thamotharem v. Canada
(Minister of Citizenship and Immigration) (2007), 366 N.R. 301, 2007 FCA
198 (F.C.A.)), and the standard of proof underlying the factual elements of a
claim must be proven on a balance of probabilities (Adjei, above, at
para. 5; see also Hinzman v. Canada (Minister of Citizenship and
Immigration) (2006), [2007] 1 F.C.R. 561, 2006 FC 420 at para. 184
(F.C.T.D.)).
[32]
In
the case at bar, the Board noted that there was “no corroborative evidence of
this incident…in the form of a Police Report or of any newspaper articles that
a house in Gulshan Ravi Lahore was attacked” (Decision at page 6). The Board
drew an adverse inference from the lack of documentary evidence of this kind
and concluded that the incident never happened.
[33]
With
respect to this finding, the Board made two errors in my view. First, the
jurisprudence is clear that a claimant’s testimony cannot be discredited simply because
it has not been corroborated by documentary evidence. The lack of objective evidence in
and of itself is not a ground to disbelieve an Applicant's sworn testimony
about his experiences (Santos v. Canada (Minister of
Citizenship and Immigration) (2004), 37 Imm. L.R. (3d) 241, 2004 FC 937 at
para. 17).
[34]
Further,
in Ahortor v. Canada (Minister of Employment and Immigration) (1993), 65
F.T.R. 137, [1993] F.C.J. No. 705 at paras. 45-48, Justice Teitelbaum held that
it was not open to the Board to draw adverse inferences and conclude that a
claimant’s story was not credible because he was not able to provide
documentary evidence corroborating his claims.
[35]
In
Attakora v. Canada (Minister of Employment
and Immigration) (1989), 99 N.R. 168, [1989] F.C.J. No. 444 (F.C.A.) [Attakora],
the Immigration Appeal Board disbelieved an applicant’s testimony that he had
an injured knee on the basis that there was no medical reports to corroborate
his testimony. The Federal Court of Appeal held that “the absence of medical
evidence is not in itself grounds for doubting the Applicant’s story. Indeed,
given such absence of medical evidence, it was not open to the Board to find
that a fracture to the Applicant’s knee would have made it impossible for him
to have walked on it” (Attakora at 200). The Federal Court of Appeal concluded
that the Board erred in law by making a finding for which there was no
evidence.
[36]
In
the present case, Muhammad testified that the couple contacted the police, but
the police refused to register an incident report because of Najma’s family’s
alleged influence. Despite this testimonial evidence, the Board focused on the
lack of corroborating documentary evidence in the form of police reports and
newspaper articles and drew an adverse inference from the Applicant’s failure
to provide such evidence. In doing so, the Board disregarded the presumption of
truthfulness of a claimant’s testimony enunciated in Moldonado and, without
evidence contradicting the allegation, the Board erroneously concluded that the
incident never occurred.
[37]
Second,
the Applicants submitted an affidavit from Muhammad’s distant uncle as
corroborative evidence of the incident. The affidavit states the following:
…Both Muhammad Shehzad Khokhar and Najma
Shehzad Khokhar came to my house in Sialkot
on November 14, 2005. They looked very upset at that time. They told me that
some unknown goons had made a murderous attack at their house. They further
told me that they had hardly escaped from that murderous attack. They were very
scared due to that murderous attack and were hardly able to speak about that
attack. Both of the husband and wife stayed at my house in hiding until 10
April 2006…
[38]
Although
the affidavit vaguely referred to the attackers as “unknown goons,” the
affidavit constituted evidence supporting the Applicants’ allegation regarding
the November 2005 incident. Despite the presumption established in Florea v.
Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 at
para. 1 (F.C.A.), that the Board has considered all the documents entered in
evidence before it, an erroneous finding of fact can be inferred from the
failure of an administrative board to “mention in its reasons some evidence
before it that was relevant to the finding, and pointed to a different conclusion
from that reached by the agency” (Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R.35, [1998] F.C.J. No. 1425
at para. 15 (QL)).
[39]
It
was open to the Board to give the affidavit little weight. However, given the
relevance of the document and the significance of this event, the Board had an
obligation to indicate its reason for rejecting this evidence when it found the
alleged attack never occurred. I note, however, that this error in and of
itself would not necessarily warrant the setting aside of the Decision. The
Board’s failure to mention some of the documentary evidence before it is not
always fatal in this regard (Hassan v. Canada (Minister of
Employment and Immigration) (1992), 147 N.R. 317, [1992] F.C.J. No. 946
(F.C.A.) (QL). However, in my view, the significant error lies in the Board’s
finding that a key event, i.e. the attack on November 2005, never occurred
based on the lack of corroborative evidence in the form of a police report or
newspaper articles. Had the Decision been based upon credibility alone, I think
it would have to be returned for reconsideration. Likewise, it is difficult to
understand the Board’s comments concerning Najma’s emotional state at the
hearing. The Board provides no basis for its conclusions, but it is obvious
that the Board was considering the credibility issues and the significance of
Najma’s emotional state for those issues. But the finding is not supported by
any reasons that I can accept and constitutes a reviewable error. However, the
Board made a separate and alternative finding regarding the availability of an
IFA and, in my view, that finding is sufficient to support the Board’s overall
conclusion that the Applicant’s are not Convention refugees and they are not at
risk if returned.
Internal
Flight Alternative
[40]
As already noted, the Board made an alternative finding that the
Applicants had an IFA in Rawalpindi or Kasur. In coming to this conclusion, the
Board applied the test set out in Thirunavukkarasu v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 589, [1993] F.C.J. No. 1172
(F.C.A.) (QL) [Thirunavukkuransu]. This test
for determining whether a viable IFA exists is two-pronged: first, the Board must be satisfied on a balance of probabilities
that there is no serious possibility that the claimants will be persecuted in
the proposed IFA; second, the conditions in the proposed IFA must be such that
it is not unreasonable for the claimants to seek refuge there.
[41]
I see no error in the Board’s conclusions on this
issue. It was open to the Board to make a finding that Muhammad and Najma would
not be at risk if they lived in Rawalpindi or Kasur, as Muhammad had lived in both places and did not encounter
problems from Najma’s family and the couple vacationed in Kasur on two
occasions without incident. With
respect to the second branch of the test, the Board noted that Muhammad had
lived in Rawalpindi in the past and
that he had returned to live and work in Lahore. I also see no reason to intervene with the Board’s finding on this
part, as the Board’s conclusion is supported by the evidence. Further, any
hardship associated with dislocation and relocation is not the kind of hardship
that renders an IFA unreasonable. As established in Thirunavukkuransu,
the threshold is high for what makes an IFA unreasonable in all circumstances.
The threshold has not been met in this case.
[42]
It is well-established that the existence of a
valid IFA is determinative of a refugee claim. Once an IFA is found, the Court
need not consider the other issues raised by an applicant on judicial
review (Shimokawa v. Canada (Minister of Citizenship and Immigration), 2006 FC 445 at para. 17; Sran v. Canada
(Minister of Citizenship and Immigration), 2007 FC 145 at para. 11).
[43]
The Applicants have a viable IFA in Rawalpindi or Kasur. As this issue is dispositive of the application, I need not
consider the remaining issue raised by the Applicants. This application for
judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James Russell”
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