Date: 20061128
Docket: IMM-7264-05
Citation: 2006 FC 1436
BETWEEN:
NIGHAT SHAHEEN
SABA MUMTAZ
NABEEL MUMTAZ
NIDA MUMTAZ
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing on the 14th of November, 2006 of an
application for judicial review of a decision of the Refugee Protection
Division (the “RPD”) of the Immigration and Refugee Board wherein the RPD
determined the Applicants not to be Convention refugees or persons otherwise in
need of like protection in Canada. The decision under review is dated the
16th of November, 2005.
BACKGROUND
[2]
The
applicants are citizens of Pakistan. Nighat Shaheen (the
“principal Applicant”), is the mother of Saba Mumtaz and Nabeel Mumtaz and Nida
Mumtaz, Saba being her daughter and Nabeel and Nida being her twin sons. The
Applicants base their claim to Convention refugee protection, or like
protection in Canada, on the basis: first of their religion, Sunni Muslims;
secondly, their perceived political opinion deriving from the fact that the
principal Applicant’s husband and father of the three (3) younger applicants
was a member of Sepah-e-Sehaba (“SSP”); and lastly, their membership in a
particular social group, family members of a member of the SSP fearing
persecution at the hands of the Tehrik-e-Jafariah (“TJP”), a radical element of
the Shia Muslim religious sect.
[3]
The
principal Applicant alleges that she was born in Jhelum, Pakistan and lived
there, and raised her children there, at all material times. She alleges that
on the 3rd of March, 1999, her husband was kidnapped by the TJP. Following
learning of the kidnapping, the Applicants immediately fled to the home of a
friend of the principal Applicant’s husband. They allege that, in the brief
time they were there, they were sought out by the TJP.
[4]
The
Applicants again fled to the home of the principal Applicant’s sister and her
husband in Multan. They
stayed there for about fifteen (15) days.
[5]
While
the Applicants were in Multan, they allege that the principal Applicant’s older
son, who resided in Lahore, had also been kidnapped. In fear for their
lives, the Applicants once again fled, this time, from the home of the
principal Applicant’s sister.
[6]
The
Applicants flight took them to Karachi where they remained for
about four (4) months. While there, the principal Applicant alleges that an
unsuccessful attempt was made to kidnap one of her Applicant sons.
[7]
Fearing
for their safety in any part of Pakistan, the Applicants fled to
Canada on the 19th
of July, 1999. When the Applicants first came to Canada, in July of
1999, and when the principal Applicant completed her narrative statement as
part of her Personal Information Form in September of 1999, she had no idea of
the whereabouts of her husband or of his fate or the fate of her older son.
[8]
The
Applicants allege that reports were filed with the police in regard to the
separate kidnappings of both the principal Applicant’s husband and her elder
son. They further allege that no investigative activity of consequence
followed. The principal Applicant testified that her husband died at the hands
of the TJP on or about the 18th of March, 2002. She provided to the
RPD, on the 14th of November, 2005 a death certificate for her
husband.
[9]
This
judicial review is of the third decision of the RPD and its predecessor in
relation to the Applicants’ claim. The matter was first heard by the CRDD on
the 5th of June, 2000. It resulted in a decision against the
Applicants. Review of that decision was sought from this Court and the
decision was set aside by decision dated the 18th of June, 2001.
The matter was again heard by the CRDD, this time resulting in a decision dated
the 12th of March, 2002. Once again, the Applicants were unsuccessful
in their claim. The second negative decision was set aside on judicial review
by this Court, in this case, dated the 17th of December, 2003.
THE DECISION UNDER
REVIEW
[10]
In
the decision under review, the RPD acknowledges the two earlier hearings of the
Applicants’ claim to Convention refugee status and the resultant decisions of
this Court referring the claims back for re-determination.
[11]
The
RPD found that “[credibility] emerged as the key issue in this claim.” It
wrote:
The panel had
credibility concerns with the principal claimant’s material evidence that was
not resolved in her favour. I found much of the claimant’s testimony to be
implausible, giving rise to enough reason to rebut the presumption of
truthfulness on her part.
[12]
The
RPD continued:
The determinative issue in
this claim is the objective component on the well-founded fear of persecution,
notably whom the claimants fear would persecute them should they return to Pakistan.
[13]
The
RPD expressed concern regarding the lack of corroborating evidence to support
the Applicants’ claims, particularly after the lapse of almost six (6) years
from the date of the Applicants’ arrival in Canada, their two (2) previous
unsuccessful claims that were nonetheless successfully judicially reviewed
before this Court, and the resulting experience that the Applicants had with
the CRDD’s concerns with their claims.
[14]
The
RPD went on to consider whether or not there existed, in Pakistan, state
protection for the Applicants. While acknowledging that state protection in Pakistan for persons
such as the Applicants was less than perfect, it determined:
The Panel determines, on
a balance of probabilities, that the state of Pakistan has in place
a judicial system, a civilian police force and a federal army capable of providing
protection to its citizens.
[15]
The
RPD considered whether there existed “compelling reasons” to grant Convention
refugee status to the Applicants in the light of changed circumstances in Pakistan. It
concluded that, because of changed circumstances, because the Applicants were
determined not to be credible and because the Applicants were not personal
witnesses to atrocities and had not personally experienced “appalling” or
“atrocious” experiences, that compelling reasons were not here present. Finally,
the RPD acknowledged the psychological report that was before it with regard to
the principal Applicant, noted that the report was based on the evidence of the
principal Applicant herself, and concluded that, given the RPD’s negative
credibility findings, “…the panel does not accept that this psychological
report supports the evidence provided by the claimant as the cause of the
symptoms [found in the psychological report to exist].”
[16]
The
RPD concluded:
Considering that the
claimant was found not to be a credible witness, the panel is satisfied that
the claim is not subjectively well founded and considering the alternative,
there is adequate although not perfect protection being provided by the state,
the panel is therefore satisfied that the claim is not objectively
well-founded.
Based on the foregoing
analysis, the panel does not accept that the evidence presented in this claim
has established that there is a reasonable chance or serious possibility that
these claimants would be persecuted for a Convention refugee ground or that
they would be in danger of torture, or that they would be put at risk to life,
or be subjected to cruel and unusual treatment or punishment should they return
to Pakistan.
THE ISSUES AND
SUBMISSIONS
[17]
Counsel
for the Applicants, in the Memorandum of Argument filed on behalf of the
Applicants, cites only one (1) issue, namely:
Did the [RPD] err in law
in ignoring and/or misinterpreting the evidence before it when it determined
that the [principal] Applicant lacked credibility.
Against that issue statement, counsel made
submissions on:
-
the
determination regarding the credibility of the Applicants;
-
the
findings regarding the kidnappings of the principal Applicant’s husband and
elder son, and the husband’s alleged death;
-
the
determination that no weight should be given to the death certificate regarding
the principal Applicant’s husband;
-
the
failure to update the principal Applicant’s Personal Information Form narrative
statement, particularly regarding alleged threats to the Applicants by the TJP
since the Applicants’ arrival in Canada;
-
the
determinations of the RPD regarding lack of evidence of police response to the
First Information Reports filed with respect to the two kidnappings and the
failure of the Applicants or their friends and relatives in Pakistan to follow
up on those Reports; and
-
the
finding regarding state protection and the failure of the RPD to find
“compelling reasons” and to give weight to the psychological report filed on
behalf of the principal Applicant.
[18]
Counsel
for the Respondent simply urged that the RPD made no reviewable error in
finding as it did and, in particular, that it made no reviewable error in
determining that the failure by the Applicants to supplement the principal
Applicant’s Personal Information Form Narrative, their failure to supplement,
during the long history of this matter before the RPD and its predecessor,
their claim with corroborating documentary evidence, and that the RPD’s
determinations regarding adequate state protection, lack of “compelling
reasons” to justify granting the Applicants’ claims and rejection of the
connection between the psychological report and the principal Applicant’s
story, by reason of its finding regarding lack of credibility in the principal
Applicant’s story, were all reasonably open to it.
ANALYSIS
[19]
As
earlier indicated in these reasons, the Applicants’ claim has been before the
RPD and its predecessor on three (3) separate occasions. On the first two (2)
occasions, the RPD’s predecessor was critical of the Applicants’ evidence
underlying their claims. For whatever reason, the Applicants, given the
occasions provided by earlier decisions of this Court, took little initiative
to bolster their claims, particularly by pursuing through their friends and
relatives who remain in Pakistan updated evidence. On
the third occasion when the Applicants went back before the tribunal of first
instance, in this case, the RPD, the Applicants went with essentially the same
evidence that they had first relied upon. It surely could have come as no
surprise to them that the same result flowed.
[20]
I
am satisfied that the RPD was cognizant of the bases on which this Court had
earlier set aside negative decisions on their claims.
[21]
Essentially,
on the decision here under review, apart from the aspect of state protection,
the determination is one of a want of credibility, a simple disbelieving of the
Applicants’ tale of events. No explanation was provided before the Court as to
why the Applicants could not have bolstered their tragic story and, why indeed,
they appear not to have even tried to do so.
[22]
While
counsel for the Applicants urged that the RPD failed to acknowledge and give
credence to directions previously provided by this Court to it with respect to
these claims, I conclude that such is not the case. It is apparent on the face
of the RPD’s reasons that it was conscious of previous decisions of this Court
on these claims, and I am satisfied that it in no sense ignored any directions
this Court may have given.
[23]
Against
a standard of review of patent unreasonableness, and I conclude that that is
the appropriate standard of review of the decision herein given that it turns
largely on the issue of the credibility to be accorded to the Applicants’ claims,
based on the limited evidentiary record, I conclude that the RPD’s decision was
open to it.
[24]
In
the result, this application for judicial review will be dismissed.
[25]
At
the close of the hearing, counsel were advised of the Court’s conclusion. When
consulted, neither counsel recommended certification of a question. No
question will be certified.
“Frederick E. Gibson”
November 28, 2006
Ottawa, Ontario
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