Docket: IMM-236-16
Citation:
2016 FC 911
Ottawa, Ontario, August 10, 2016
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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KHANSA ABBAS
MUHAMMAD WAQAS SHEIKH
(aka MUHAMMAD
WAQAS SARFRAZ SHEIKH)
MUHAMMAD ANAS
WAQAS
MUHAMMAD
IBRAHEEM WAQAS
(aka MUHAMMAD
IBRAHE WAQAS)
MUHAMMAD AOUN
WAQAS
QANITA WAQAS
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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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JUDGMENT AND REASONS
[1]
The applicants, a
family from Pakistan, seek judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of the January 4, 2016 decision of
the Refugee Protection Board [RPD] of the Immigration and Refugee Board which
found that they are not Convention refugees or persons
in need of protection.
[2]
The determinative issue for the RPD was the
applicants’ credibility. On judicial review the applicants argue that the
credibility findings were not reasonable and that the RPD failed to consider
the profile of the applicants and the objective evidence of persecution of
Shias in Pakistan with the applicants’ profiles. For the reasons set out below,
I find that the RPD’s credibility findings warrant the Court’s deference and
its decision is reasonable. As a result, the application for judicial review is
dismissed.
I.
Background
[3]
The applicants seek refugee protection based on
religious persecution. Mr. Sheikh was raised as a Sunni Muslim and his wife, Ms.
Abbas was raised as a Shia Muslim. Mr. Sheikh converted to the Shia faith
before marrying his wife.
[4]
The applicants recount that Ms. Abbas and her
family were known in their community; she preached Shi’ism, built Imam Bargahs,
helped poor Shia families arrange their marriages, and became the propaganda
secretary of the ladies’ wing of the local Imam Bargah (which the applicants
describe as including assisting the Imam and preaching).
[5]
The applicants allege that they were victims of
several “small incidents”. They also highlight
as major incidents: the murder of Ms. Abbas’ step-uncle and his son in February
2013; the robbery of their home in December 2014, allegedly by Sunni
extremists, and subsequent telephone threats; and, that Mr. Sheikh and his son
were shot in their car in a similar manner as the murder of Ms. Abbas’
step-uncle, in July 2015.
[6]
Mr. Sheikh also noted in his Basis of Claim form
[BOC] that he owned flour mills and, although other flour mills stopped selling
flour to Shia Imam Bargahs, he continued to do so and was threatened as a
result.
[7]
The applicants applied for Australian visas in
March 2015, which were refused. They applied for U.S. visas in June 2015,
received them in July 2015, and left Pakistan in August 2015. They arrived in
Canada via the U.S. and made a refugee claim on September 9, 2015.
II.
The RPD decision
[8]
The RPD refused the applicants’ application for
refugee protection and found that, due to credibility findings, the applicants
had not established that there is a reasonable chance or serious possibility
that they will face persecution on a Convention ground, pursuant to section 96
of the Act. The RPD also found that on a balance of probabilities the
applicants would not face a risk pursuant to subsection 97(1) of the Act upon
their return to Pakistan.
[9]
The RPD noted the governing principles regarding
assessments of credibility, including that there is a presumption that an
applicant’s statements are true unless there is a reason to doubt their
truthfulness and that the totality of the evidence must be considered.
[10]
The RPD noted specific exchanges which led to
adverse credibility findings based on evasive, indirect and non-responsive
answers and noted, more generally, that the RPD member often had to repeat
questions posed to Mr. Sheikh because he did not provide a direct answer.
[11]
The RPD found that Mr. Sheikh’s responses to
questions regarding the applicants’ fear of persecution due to their preaching
were “all over the map” and that he could not
clearly indicate where the preaching took place, to whom they preached or why
this posed problems for them. The RPD added that this was an important aspect
of the claim.
[12]
The RPD also found that the allegation that the
applicants tried to convert Sunnis was inconsistent with the practices in and
law of Pakistan, based on information in the National Documentation Package
[NDP]. The RPD concluded that this allegation was an embellishment to further
their claims.
[13]
With respect to the two major incidents
recounted, the RPD noted that there was no proof that the break-in and robbery
in 2014 was committed by Sunni extremists and found that it was not probable
that the robbers were seeking to kill the applicants due to their religious
proselytizing, but, if they were, the robbers could have attacked the
applicants while they were at home.
[14]
The RPD also noted that the shooting of the
applicants’ car in July 2015 took place the year following the robbery and
after they had received their U.S. visas. The RPD found, on the basis of this
timing, that this incident, as well as the 2014 robbery, were more likely
random crimes than targeted attacks for their religious preaching.
[15]
The RPD found that the applicants’ allegation
that they were at risk also because Ms. Abbas’ step-uncle, a prominent doctor,
was murdered in 2013 was not supported by the evidence and was an embellishment
to their story.
[16]
The RPD noted that according to the U.S. Central
Intelligence Agency, as of July 2014, Shias constitute 10-15% of the Muslim
population in Pakistan and that there are about 20- 30 million Shias in
Pakistan. The RPD referred to the Response to Information Request in the NDP
and noted that there is violence perpetrated by Sunni extremists against Shias,
but other than random violence, targeted killings in Pakistan are perpetrated
against persons with particular profiles, which do not match those of the
applicants.
[17]
The RPD found, based on its credibility findings
and in the context of the documentary evidence, that there is no more than a
mere possibility that the applicants would be persecuted upon their return. As
noted above, the RPD also found that the applicants had not established their
section 97 claim on a balance of probabilities.
III.
The Issues
[18]
The applicants raise two issues: that the RPD’s
credibility findings were unreasonable and that the RPD failed to conduct an
objective assessment of the risk they faced.
[19]
With respect to credibility, the applicants
submit that the RPD made unreasonable credibility findings by
misinterpreting and selectively reading the testimony and evidence and by
subjectively assessing the manner in which the testimony was given rather than
pointing to contradictions and inconsistencies in the evidence.
[20]
The applicants also submit that the RPD erred in its assessment
of the objective basis of the claim because it did not identify the profile of
the applicants against the objective evidence which indicates that violence
against Shia is increasing in Lahore and Multan, where the applicants had lived
and that community leaders and people in prominent positions, as well as
others, are targeted.
IV.
The Standard of Review
[21]
There is no dispute that the standard of review
of issues of fact, including credibility, and mixed fact and law is
reasonableness. The RPD’s decision should be given deference as long as the
decision “falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47, 53, 55, [2008] 1 SCR
190; Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC
12 at para 59, [2009] 1 S.C.R. 339).
V.
Relevant Principles Regarding Credibility
[22]
It is well established that boards and tribunals,
such as the RPD, are best placed to assess credibility (Aguebor v Canada
(Minister of Employment and Immigration), [1993] FCJ No 732 (QL) at para 4,
160 NR 315 (FCA) [Aguebor]) and that their credibility findings should
be given significant deference ( Lin v Canada
(Minister of Citizenship and Immigration), 2008 FC 1052 at para 13, [2008]
FCJ No 1329 (QL); Fatih v Canada (Minister of Citizenship and
Immigration), 2012 FC 857 at para 65, 415 FTR 82; Lubana v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116 at
para 7, 228 FTR 43 [Lubana]).
[23]
However, credibility findings are not beyond
review. They may be found to be unreasonable, for example, when the
inconsistencies or omissions are insignificant or result from a microscopic
examination, when explanations have been unreasonably discounted, or when
relevant information has not been considered.
[24]
In Rahal v Canada (Minister of
Citizenship and Immigration), 2012 FC 319, [2012] FCJ No 369 (QL) [Rahal],
Justice Mary Gleason summarized the key principles from the jurisprudence
regarding credibility (at paras 41-46). She highlighted the Court’s limited
role in reviewing credibility findings at para 42:
[42] First, and perhaps most
importantly, the starting point in reviewing a credibility finding is the
recognition that the role of this Court is a very limited one because the
tribunal had the advantage of hearing the witnesses testify, observed their
demeanor and is alive to all the factual nuances and contradictions in the
evidence. Moreover, in many cases, the tribunal has expertise in the subject
matter at issue that the reviewing court lacks. It is therefore much better
placed to make credibility findings, including those related to implausibility.
Also, the efficient administration of justice, which is at the heart of the
notion of deference, requires that review of these sorts of issues be the
exception as opposed to the general rule. As stated in Aguebor at para
4:
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…
(see also Singh at para 3 and He v Canada (Minister of
Employment and Immigration), 49 ACWS (3d) 562,
[1994] FCJ No 1107 at para 2).
[25]
Other key principles noted by Justice Gleason in
Rahal, at paras 43-36, include:
• Contradictions in the evidence, particularly in the
applicant’s own testimony, will provide a reasonable basis for finding the
claimant to lack credibility, but such contradictions must be real and more
than trivial or illusory.
• While the sworn testimony of the applicant is to be
presumed to be true in the absence of contradiction, it may reasonably be
rejected if the RPD finds it to be implausible. A finding of implausibility
must be rational, sensitive to cultural differences and clearly expressed.
• The Board may consider the demeanor, including
hesitations, vagueness and changes or elaboration of the story in assessing
credibility, but it is preferable if there are also other objective facts to
support the credibility finding.
• The Board must make clear credibility findings with
sufficient particulars.
[26]
In Lubana, Justice Luc Martineau had set
out similar guiding principles at paras 7-10, describing the assessment of
credibility as the “heartland” of the Board’s
jurisdiction. Justice Martineau cautioned against a microscopic examination of
the evidence at para 11, noting that not every inconsistency or implausibility
will support a negative finding and “[i]t would not be
proper for the Board to base its findings on extensive ‘microscopic’
examination of issues irrelevant or peripheral to the applicant's claim.”
Justice Martineau further cautioned against applying North American logic to
the applicant’s behaviour at para 12 of Lubana, noting that
consideration should be given to, among other things, the applicant’s age,
cultural background and social experience.
[27]
The jurisprudence has also noted the need to
take into account the role of the interpreter in assessing the testimony of a
refugee claimant (for example, Attakora v Canada (Minister of Employment and
Immigration), [1989] FCJ No 444 (QL), 99 NR 168 (FCA); Owusu-Ansah v
Canada (Minister of Employment and Immigration), [1989] FCJ No 442 (QL), 98
NR 312 (FCA)).
[28]
With respect to plausibility findings, the
applicants highlighted the guidance provided by Justice Michael Phelan in
Hassan v Canada (Minister of Citizenship and Immigration), 2010 FC
1136 at paras 12-13, [2010] FCJ No 1409 (QL) [Hassan]:
[12] However, credibility findings and
plausibility conclusions cannot be based on speculation or conjecture and must
be adequately explained (see Aguebor v. (Canada) Minister of Employment and
Immigration (F.C.A.), [1993] F.C.J. No. 732). In this case, the findings
related to plausibility. The test for such findings is often repeated from the
judgment of Justice O’Halloran in Faryna v. Chorny, [1951] B.C.J. No.
152 at para. 10:
If a
trial Judge's finding of credibility is to depend solely on which person he
thinks made the better appearance of sincerity in the witness box, we are left
with a purely arbitrary finding and justice would then depend upon the best
actors in the witness box. On reflection it becomes almost axiomatic that the
appearance of telling the truth is but one of the elements that enter into the
credibility of the evidence of a witness. Opportunities for knowledge, powers
of observation, judgment and memory, ability to describe clearly what he has
seen and heard, as well as other factors, combine to produce what is called
credibility, and cf. Raymond
v. Bosanquet (1919),
50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by
his manner may create a very unfavourable impression of his truthfulness upon
the trial Judge, and yet the surrounding circumstances in the case may point
decisively to the conclusion that he is actually telling the truth. I am not
referring to the comparatively infrequent cases in which a witness is caught in
a clumsy lie.
[13] The consideration of plausibility
is largely subjective and requires the Board to refer to evidence which could
refute their implausibility conclusions and explain why such evidence does not
do so (see Leung v. Canada (Minister of Employment and Citizenship),
[1994] F.C.J. No. 774).
[29]
Similarly, in Aguilar Zacarias v Canada (Minister
of Citizenship and Immigration), 2012 FC 1155, [2012] FCJ No 1252 (QL),
Justice Mary Gleason reviewed the jurisprudence on plausibility and related
credibility findings and noted:
[11] An allegation may thus be found to
be implausible when it does not make sense in light of the evidence before the
Board or when (to borrow the language of Justice Muldoon in Vatchev) it is “outside the realm of
what reasonably could be expected”. In addition, this Court has held that the
Board should provide “a reliable and verifiable evidentiary base against which
the plausibility of the Applicants’ evidence might be judged”, otherwise a
plausibility determination may be nothing more than “unfounded speculation” (Gjelaj v Canada (Minister of Citizenship and Immigration), 2010 FC 37 at para 4, [2010] FCJ No 31; see also Cao v Canada (Minister of Citizenship and Immigration), 2012 FC 694 at para 20, [2012] FCJ No 885 [Cao]).
[30]
It is against all these principles that the
RPD’s findings have been reviewed. I have reviewed the transcript, the record
and the applicants’ arguments and considered whether the credibility findings
were based on real contradictions in the testimony on non-peripheral matters,
whether the RPD’s scrutiny was microscopic, and whether the RPD’s credibility
findings were based on more than simply evasive and roundabout answers to some
questions.
VI.
The Credibility Findings Are Reasonable
[31]
The review of the written transcript of Mr.
Sheikh’s testimony cannot perfectly convey the dynamics of the hearing or the exchange
of questions and answers as it unfolded, but it does reveal the manner of the
testimony, which the RPD found to be vague, evasive and unresponsive to direct
questions, many of which were repeated and clarified.
[32]
Although the RPD’s credibility findings were
largely based on Mr. Sheikh’s vague and indirect responses and, in some cases,
his failure to respond to the question asked, rather than clear contradictions
between the BOC and the testimony, the cumulative nature of the evasive and
indirect responses and some internal contradictions on key aspects of the claim
is, in these circumstances, a sufficient basis for the RPD to find that the
applicants’ claim as recounted lacked credibility and was insufficient to
establish their risk of persecution. The applicants
submit that Mr. Sheikh’s testimony did not contradict his BOC, however, his BOC
did not provide the details of the applicants’ allegations. The RPD, therefore,
probed the allegations at the hearing seeking the details and assessed the oral
testimony.
[33]
The RPD heard the testimony directly and
observed Mr. Sheikh. The RPD provided opportunities for him to clarify his
answers. The RPD also rephrased and refocused its questions to encourage a
response on issues that were the key elements of his claim.
[34]
The role of the interpreter was taken into
account by the RPD, but the transcript reveals that Mr. Sheikh spoke over the
interpreter on several occasions, causing the RPD member to request that one
person speak at a time. Contrary to Mr. Sheikh’s
submission that he was interrupted, it was he who often interrupted the
interpreter or spoke at the same time as the interpreter and/or the RPD member.
Moreover, despite the interruptions, Mr. Sheikh had the opportunity to provide
answers. There is no suggestion that the interpreter did not accurately
interpret the questions or the answers.
[35]
The applicants and respondent have focussed
their arguments on the details of Mr. Sheikh’s testimony with respect to
particular issues and other evidence, as noted below.
A.
The Testimony whether Ms. Abbas was Sufi
[36]
With respect to the questions regarding whether Ms. Abbas was Sufi and the meaning of Sufism, the applicants
argue that the RPD member first asked what Ms. Abbas’ religion was and Mr.
Sheikh responded that she is Shia. The RPD then asked if she was Sufi, and Mr.
Sheikh responded that he did not understand the question. When the question was
repeated, he responded that “No. She’s a preacher, she
preaches the religion.” The applicants argue that the RPD’s subsequent
questions were confusing because the answer had already been provided.
[37]
A review of the transcript of this exchange
supports the RPD’s finding that the answers were vague and indirect. Mr.
Sheikh’s testimony, that he did not understand the question, that he did not
know what “Sufi” means and then that Sufism is a
branch of Sunnism, shows some internal inconsistency on an issue that is
important in the context of the applicants’ claim.
B.
The testimony regarding the Sufi saint
[38]
The applicants dispute the finding that Mr.
Sheikh’s answer to questions regarding a Sufi saint made “little sense”. Mr. Sheikh stated that he knew that
Abul Hassan was a Sufi saint because he was “close to
God”. The applicants submit that his acknowledgement of the shrine and
his testimony that he regularly visits the shrine is not at all confusing.
[39]
The RPD noted that the responses regarding Sufis
and their saints were relevant because Mr. Sheikh’s most frightening event was
the shooting en route home from a shrine dedicated to a Sufi saint.
[40]
In my view, Mr. Sheikh’s responses do not rise
to the level of nonsense, but the RPD’s adverse credibility finding is
reasonable, given that Mr. Sheikh had expressed some confusion about the
meaning of Sufism yet knew that the saint mentioned was Sufi.
C.
The testimony about the flour mill
[41]
With respect to Mr. Sheikh’s testimony about the
link between his ownership of a flour mill and the allegations of risk, the
applicants argue that Mr. Sheikh was attempting to explain this link, but
stated that the main problem was his wife’s preaching. The applicants submit
that there were no inconsistencies in his testimony.
[42]
The respondent submit that Mr. Sheikh did not
respond to the RPD’s clear and repeated questions about how his ownership of a
flour mill and his refugee claim were linked until the RPD member asked a leading
question. The respondent argues that it was reasonable for the RPD to probe
this issue because the applicants’ BOC stated that they were threatened because
they sold flour to Imam Bargahs.
[43]
In my view, the RPD did not make any specific
credibility finding based on the belaboured questioning about the flour mill.
The RPD noted only that this was another example of the indirect manner in
which Mr. Sheikh responded to questions. The exchange, which ended with Mr.
Sheikh again stating that his wife preached and worked at the Imam Bargah, led
to other questions about his wife’s role as “propaganda
secretary”.
D.
The testimony about preaching to Sunnis
[44]
With respect to the testimony regarding the
applicants’ preaching to Sunni Muslims, the applicants submit that the RPD
member asked the interpreter to repeat Mr. Sheikh’s answers several times and
interrupted him as he attempted to give his answers. The applicants submit that
his responses were not inconsistent or contradictory.
[45]
The applicants also argue that the RPD erred by
making a finding that is not supported by the documentary evidence. First, the
RPD did not cite the Pakistani law which it relied on in finding that the
conversion of Sunnis “flies in the face of the law of
Pakistan.” Second, Mr. Sheikh did not testify that he tried to
forcibly convert anyone from being a Sunni to a Shia. Third, the documentary
evidence relied on by the RPD does not refer to conversions from Sunni to Shia.
[46]
The applicants also submit that this was a
plausibility finding made without a specific and clear reference to the
evidence (Hassan at para 13).
[47]
In the respondent’s view, this was a credibility
finding based on the inconsistent responses given by Mr. Sheikh about where and
to whom the applicants preached. Moreover, Mr. Sheikh’s testimony clearly
indicated that the applicants attempted to convert Sunnis, although not by
force, but in various locations, and this was not limited to those who
approached them. In addition, the exhibits from the NDP referred to by the RPD
support the finding that the applicants’ allegations that they attempted to
convert Sunnis was contrary to the attitudes of moderate Sunnis.
[48]
While the Court may not have reached the same
conclusion as the RPD that Mr. Sheikh’s testimony about preaching and
converting Sunnis was inconsistent with his testimony that this was not a key
tenet of their faith, the RPD’s finding that his responses on this issue,
overall, were untenable, is not unreasonable and was open to the RPD. The RPD’s
finding that the applicants’ claim to preach to convert Sunnis was an
embellishment, which goes against common sense to those who know the situation
in Pakistan, was a finding made by the RPD with reference to the objective
evidence, which was quite voluminous, and described many aspects of religious
conflict in Pakistan, including conflict between Sunnis and Shias and between
Sunnis and minority religions more generally. Readers of the voluminous
information may reach different conclusions about whether the documentation confirms
that attempts by Shias to convert Sunnis to Shi’ism would expose them to such a
high level of risk as to deter such activity, but the RPD’s interpretation of
the documentary evidence is not unreasonable. Whether characterized as a
plausibility finding or a credibility finding, the RPD did point to the
objective evidence relied on to support its finding.
E.
The two key incidents
[49]
With respect to the key incidents which the
applicants relied on to support their allegations of risk – the robbery in
December 2014 and shooting in July 2015 – the applicants argue that the RPD
erred in attributing these incidents to random violence without considering
that, at the time of these incidents, the applicants were receiving threats
from Sunni extremists. The applicants argue that mixed motives, for example of
both robbery and religious persecution, should have been considered.
[50]
In my view, the RPD decision does not suggest
that it ignored the possibility of mixed motives. Rather, the RPD found that
there was no evidence that the robbers were Sunni extremists or that the men
who shot at Mr. Sheikh were Sunni extremists. The RPD noted that, while it was
possible that the robbers were seeking to kill them for their religious
proselytizing, it was not probable.
[51]
The RPD also noted that Mr. Sheikh’s own
evidence was that he did not know who robbed his home in 2014 or who his
attackers were in 2015.
F.
The objective assessment of risk
[52]
With respect to the applicants’ argument that
the RPD failed to objectively consider their section 96 claim, regardless of
the adverse credibility assessment, I find that the RPD did conduct such an
assessment, albeit briefly. The RPD noted that the applicants did not meet the
profile of Shia at risk of being targeted. The applicants argue that their
profile, as a prominent family, was not assessed by the RPD. However, the RPD
did not make any finding that they were prominent and found that their claim to
be related to a prominent doctor who had been murdered was an embellishment.
The RPD found that, based on the credibility findings and in the context of the
deaths reported in the objective evidence, they would not be persecuted.
[53]
In conclusion, the determinative issue for the
RPD was the credibility of the applicants’ claim that they had and would face
persecution due to their religion and their preaching in Pakistan. The
credibility findings made by the RPD should be given significant deference and
should not lightly be disturbed. The Court’s role is not to reweigh the evidence
and reassess credibility of witness where the RPD has heard that testimony
first hand, observed the witness, probed the testimony, and made findings that
are within the range of acceptable outcomes. In the circumstances of this case,
the RPD’s key credibility findings are reasonable and, as a result, the overall
finding that the applicants are not Convention refugees or persons in need of
protection is reasonable.
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