Date:
20150605
Docket: IMM-5207-14
Citation:
2015 FC 692
Ottawa, Ontario, June 5, 2015
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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MUHAMMAD USMAN
TARIQ
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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AMENDED JUDGMENT AND REASONS
[1]
This is an application for judicial
review by Muhammad Usman Tariq [the Applicant] under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision by the
Immigration and Refugee Board of Canada, Refugee Protection Division [RPD],
dated June 13, 2014, wherein the RPD found that the Applicant’s claim did not
have a credible basis and that he was not a Convention refugee or a person in
need of protection.
[2]
I have read the written submissions and heard
the oral submissions of counsel for the parties.
[3]
This application for judicial review should
be dismissed for the reasons set out below.
[4]
The Applicant was born on September 18, 1988. He
is a citizen of Pakistan and alleges being a follower of the Lahori Ahmadi
faith. He left Pakistan in December 2010, and after spending 3 years in
Ecuador, came to Canada where he arrived on December 6, 2013. He claimed
refugee protection in Canada alleging persecution from extremist groups such as
Jummiat Tulbah Islam and Lashkar e Jhangvi due to his profile as a student
leader of Lahori Ahmadi faith. The RPD rejected the Applicant’s claim for
refugee protection on June 13, 2014. The Applicant filed an application for
leave and for judicial review and leave was granted on February 25, 2015.
[5]
The RPD was satisfied as to the Applicant’s
identity as a Pakistani national. The determinative issue was credibility.
[6]
The RPD noted that it was mindful of the
Applicant’s age, education and background in assessing his credibility.
Precisely, the RPD noted that the Applicant had completed his university
studies and earned a degree in Journalism from the Punjab University and that
he has some knowledge of English and Spanish. After having had the benefit of
observing the Applicant for over three hours of hearing, the RPD found him to
be a sophisticated and capable individual. However, the RPD decided that his
evidence should not be accepted and various documents filed in support were not
accepted to displace the credibility findings. The specific findings are
outlined later. Based on these, the RPD found that the Applicant was not
credible with respect to his religious identity as a Lahori Ahmadi and that he
was therefore not credible with respect to the incidents of harm which he
alleged to have occurred because of his religion as a Lahori Ahmadi. The RPD
also found that the Applicant generally lacked credibility, and that any of the
significant events that he alleged happened to him did not actually happen. The
RPD found that the Applicant’s oral testimony was as a whole neither
trustworthy nor credible and that his lack of credibility as a witness combined
with a lack of persuasive documentation to support his claim was fatal to his
claim.
[7]
The RPD, based on its cumulative findings, found
that the Applicant had not satisfied his burden of establishing that there was
a reasonable possibility of persecution on a Convention ground or that he would
be personally subjected to a risk to life or a risk of cruel and unusual
treatment or punishment or a danger of torture in Pakistan. The RPD
consequently found the Applicant was not a Convention refugee or a person in
need of protection. Therefore, the RPD rejected the Applicant’s claim. The RPD
also found that there was no “credible basis” for his claim, pursuant to
subsection 107(2) of the IRPA.
[8]
This matter raises the issue of whether the RPD
made findings without due regard to the evidence properly before it.
[9]
As to the standard of review, in Dunsmuir v
New Brunswick, 2008 SCC 9 at paras 57, 62 [Dunsmuir], the Supreme
Court of Canada held that a standard of review analysis is unnecessary where “the jurisprudence has already determined in a satisfactory
manner the degree of deference to be accorded with regard to a particular
category of question.” It is well established that reasonableness is the
applicable standard of review to determinations of fact and mixed fact and law
by the RPD, such as its consideration and treatment of evidence, as well as its
assessments of credibility: Ye v Canada (Minister of Citizenship and
Immigration), 2014 FC 647 at paras 17-18. In Dunsmuir at para 47, the
Supreme Court of Canada explained what is required of a court reviewing on the
reasonableness standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[10]
Because this is a case that turns almost
exclusively on credibility, it is useful to note other law in this regard. It
is well established that the RPD has broad discretion to prefer certain
evidence over other evidence, and to determine the weight to be assigned to the
evidence it accepts: Medarovik v Canada (Minister of Citizenship and
Immigration), 2002 FCT 61 at para 16; Pushpanathan v Canada (Minister of
Citizenship and Immigration), 2002 FCT 867 at para 67. Analyzing findings
of fact and determinations of credibility fall within the heartland of its
expertise: Giron v Canada (Minister of Employment and Immigration)
(1992), 143 NR 238 at 239 (FCA). In fact, the RPD is recognized to have
expertise in assessing refugee claims and is authorized by statute to apply its
specialized knowledge: Chen v Canada (Minister of Citizenship and
Immigration), 2003 FCT 805 at para 10. Therefore, the Court should not
substitute its own findings for those of the RPD where the conclusions it
reached were reasonably open to it: Giron v Canada (Minister of
Citizenship and Immigration), 2008 FC 1377 at para 9 [Giron].
[11]
The Federal Court of Appeal stated in Siad v
Canada (Secretary of State), [1997] 1 FC 608 at para 24 (FCA), that the
RPD:
is uniquely situated to assess the
credibility of a refugee claimant; credibility determinations, which lie within
‘the heartland of the discretion of triers of fact’ are entitled to
considerable deference upon judicial review and cannot be overturned unless
they are perverse, capricious or made without regard to the evidence.
[12]
The Applicant submits that the RPD made numerous
errors concerning the evidence which warrant intervention by way of judicial
review. With respect, I disagree. In my opinion, the Applicant does not raise
any reviewable issue on the evidence. Instead, the Applicant asks that this
Court reweighs the evidence that was before the RPD. This is not the role of a
reviewing court on judicial review: Giannaros v Canada (Minister of Social
Development), 2005 FCA 187 at para 12.
[13]
In particular, I will set out some of the
findings criticized by the Applicant followed by my comments:
i.
The Applicant omitted to specify in his Basis of
Claim [BOC] that his father told him that members of JTI and LeJ were still “often” looking for him. The Applicant said he forgot
to mention that information. The RPD noted that this omission was material in
that it concerned the continued interest of the agents of persecution. The RPD
noted that the Applicant was represented by competent counsel and that he
testified at the start of the hearing that his BOC was complete, true and correct.
The RPD drew a negative inference to the Applicant’s credibility and found that
members of the JTI and LeJ did not continue to search for him. Court comment:
This finding is reasonable given the deference due to credibility findings of
the RPD. I also note that it seems these groups were not searching for the
Applicant during the 3 years he was in Ecuador, although he said his contact
with family members was limited in this period.
ii.
The RPD noted multiple concerns regarding the
Applicant’s religious identity, noting that while the Applicant was able to
talk generally about some historical events, the situation for Ahmadis in
Pakistan and the restrictions upon them, he was unable to talk about other
basic aspects of the Lahori Ahmadi religion, as well as certain historical and
current events that, in the RPD’s view, he should reasonably have known without
prompting. For example the Applicant did not know the official name of the
Lahori Ahmadi sect was Ahmadiyya Anjuman Isha’at-i-Islam. The Applicant instead
said that he was told by his father that they were known as Lahori Ahmadis. The
RPD noted that objective evidence indicated that in 1914 the Ahmadiyya
Mouvement in Islam split into two branches, the Ahmadis and the Lahore group,
the latter of which was known as the Ahmadiyya Anjuman Isha’at-i-Islam. The RPD
found that the Applicant, having alleged to be a practicing Lahori Ahmadi,
should reasonably have known the full name of the Lahore group. The RPD drew a
negative inference as to the Applicant’s credibility in this regard. Court
comment: While the official name of particular religions including that of the
Applicant might not be known by all its adherents, on balance, these findings
are reasonable given the deference afforded to the RPD on matters of credibility
and given its expertise and experience.
iii.
The Applicant testified that there were not two
different sects within the Ahmadi community. However, when asked by the RPD
whether there were the Lahori and Qadiani sects, the Applicant said that was
correct and explained that he was unable to say so without being prompted
because his mind was somewhere else. While the Applicant was able to describe
the main difference between the Lahori Ahmadi and Qadiani Ahmadis, the RPD
found that the Applicant should reasonably have known that the Ahmadi community
is divided in two different groups without being prompted. The RPD drew a
negative inference to the Applicant’s credibility in this regard. Court
Comment: Again, the Applicant was only able to answer correctly when prompted
by the RPD. On balance, this finding is reasonable.
iv.
When asked if there was any significance to the
year 1984 regarding religious persecution of Ahmadis, the Applicant testified
that he did not remember any specific incident but that he remembered the year
1977 to be significant. When the RPD asked the Applicant if he had heard of
Ordinance XX (referred to as the “anti-Ahmadi”
legislation) and read some of the objective evidence pertaining to Ordinance
XX, he testified that he had “not heard of it but
absolutely there must be”. Given the historical significance of
Ordinance XX for the history of persecution of Ahmadis, the RPD found it
reasonable that the Applicant, if he were a genuine practicing Lahori Ahmadi,
would have some knowledge of Ordinance XX without being prompted. The RPD drew
a negative inference to the Applicant’s credibility in this regard.
Court comment: This finding is reasonable given the deference due to
credibility findings of the RPD and its expertise.
v.
When asked if there had been any major attacks
on the Ahmadi community in the past few years, the Applicant testified that he
did not know. When the RPD asked if there had been serious bombing on Ahmadi
mosques in May 2010, the Applicant replied “about this
I don’t know.” The RPD noted that the Applicant testified that he was
residing in Peshawar at that time and that he moved back to Lahore in June
2010. When the RPD read documentary evidence which indicated that “on 28 May 2010, co-ordinated attacks on two separate Ahmadi
mosques in Lahore left close to a 100 people dead” and asked the
Applicant again if he remembered these attacks, the Applicant testified that “yes, it did occur”. The RPD rejected the Applicant’s
explanation that he forgets things, gets nervous and that his mind goes
somewhere else. When asked by his counsel why he could not remember the attacks
despite living in Pakistan at the time and moving back to Lahore the month
following the attack, the Applicant explained that he was focused on his own
problems at the time. The RPD rejected the Applicant’s explanation, noting that
he only indicated that he forgets things or that his mind goes somewhere else
when confronted with credibility issues. The RPD found it unreasonable that the
Applicant would not have known about this attack given the seriousness of the
attack and that it occurred to members of his own religious community. The RPD
drew a negative inference to the Applicant’s credibility in this regard. Court
comment: This conclusion is reasonable, particularly given the Applicant has a
degree in journalism as the RPD had noted.
vi.
The RPD gave little weight to a membership
letter from Ahmadiyya Lahore given the other credibility concerns and negative
inference drawn, as well as given the prevalence and availability of fraudulent
documents in Pakistan. Court comment: This finding is reasonable, particularly
since the Applicant testified that he did not know who the author of the letter
is and given that his father had supplied the document to him.
vii.
When asked whether he belonged to a mosque in
Canada or if he was involved in the Lahori Ahmadi community in Canada, the
Applicant testified that “in Canada there is no mosque
for Lahori Ahmadis”. When asked whether he was aware of the Ontario
Ahmadiyya Anjuman Isha’at Islam (OAAIL), the Applicant explained that it was
his friend that told him that there were no Lahori Ahmadi mosques in Canada and
that he did not do his own research as he was disturbed and stressed. The RPD
acknowledged that the Applicant may have been stressed and disturbed, but that
he was nonetheless able to contact his family in Pakistan in order to have
documents sent to him for his refugee hearing such as affidavits from family
and friends, as well as donation receipts, and that he reasonably could have
also researched whether or not there was a Lahori Ahmadi community in Canada.
The RPD drew a negative inference to the Applicant’s credibility in this
regard. Court comment: Again, this finding is reasonable and based on the
evidence, and is stated clearly as required.
viii.
The three donation receipts from the Ahmadiyya
Anjuman Lahore presented into evidence by the Applicant all dated after he had
left Pakistan and shortly before his arrival in Canada 3 years later. The
Applicant explained that his father made the donations on his behalf. The RPD
found that these receipts did not, in and of themselves, corroborate the
Applicant’s religious identity as a Lahori Ahmadi. The RPD gave the receipts
little probative weight given the other credibility concerns and negative
inference drawn, as well as given the prevalence and availability of fraudulent
documents in Pakistan. Court comment: In my view, it is reasonable for the RPD
to have given little if any probative weight to a small handful of
contributions that were admittedly made not by the Applicant himself, but by a
third party (his father).
ix.
The affidavits presented by the Applicant were
not dated. The RPD found it was difficult to ascertain their veracity. The RPD
also noted having had the opportunity to test the Applicant’s credibility,
found him not to be credible, and therefore accorded little probative weight to
the untested affidavits of his friends and family. Court comment: this finding
is also reasonable and in accordance with settled law, namely that when a
general negative credibility finding is made by the RPD, it is open for it to
give low probative value to other documents even if they reflect the claimant’s
own statements. That is exactly what happened here, and is permitted and I find
reasonable. As stated in Giron at para 11:
11. …. Documents that are reflective only of
statements made by a claimant may not be given such probative value once a
negative credibility finding has been made. At paragraph 21 of Hamid v. Canada
(MEI) (1995), 58 A.C.W.S. (3d) 469, Nadon J. (as he then was) wrote:
21 Consequently, in my
opinion, the applicant's assertion that the Board is bound to analyze the
documentary evidence “independently from the applicant’s testimony” must be
examined in the context of the informal proceedings which prevail before the
Board. Once a Board, as the present Board did, comes to the conclusion that an
applicant is not credible, in most cases, it will necessarily follow that the
Board will not give that applicant's documents much probative value, unless the
applicant has been able to prove satisfactorily that the documents in question
are truly genuine. In the present case, the Board was not satisfied with the
applicant’s proof and refused to give the documents at issue any probative
value. Put another way, where the Board is of the view, like here, that the
applicant is not credible, it will not be sufficient for the applicant to file
a document and affirm that it is genuine and that the information contained
therein is true. Some form of corroboration or independent proof will be
required to “offset” the Board's negative conclusion on credibility.
x.
While the RPD did not question the psychological
report’s diagnosis, it noted that the psychological report did not indicate
that the Applicant had any cognitive difficulties or problems with his memory.
The RPD further noted that the psychological report appeared to have been based
on fabricated incidents and events that were relayed to the psychologist by the
Applicant, and that the evidence with respect to his psychological state in
relation to those experiences was therefore not reliable. Court Comment: These
are reasonable findings for the RPD to make on the facts of this case.
Applicant’s counsel emphasized that the Applicant was nervous and had short
term memory issues. However, there was no reference to short term memory issues
(self-reported by the Applicant) in his psychologist’s report. In any event,
the questions to which the Applicant failed to respond reasonably, as set out
above, were not matters of short term memory.
[14]
It is noteworthy that the letter by the Ahmadi
organization confirming his membership, the donation receipts, the
psychological report, and the affidavits by his father and family friends were
all explicitly noted by the RPD in its reasons, followed by its concerns and
reasons for giving such material little weight.
[15]
In my opinion, both with respect to the evidence
and the documents, the RPD conducted the very type of credibility assessment it
is required to perform. Its decision is justified, and its reasons are
transparent and intelligible. Its decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
Therefore, judicial review must be dismissed.
[16]
Neither party proposed a question to certify and
none arises.
JUDGMENT
THIS COURT’S JUDGMENT is that the application for judicial review is dismissed,
no question is certified, and there is no order as to costs.
"Henry S. Brown"
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