Date: 20060613
Docket: IMM-4952-05
Citation: 2006
FC 746
Ottawa, Ontario, June 13, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
YAWAR
ABBAS and MONA FATIMA
Applicants
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Background
[1]
On July
18, 2005, the Refugee Division of the Immigration and Refugee Board (the
tribunal) rejected the refugee claims of Yawar Abbas and Mona Fatima (the
applicants) a married couple, citizens of Pakistan and Shia Muslims to be Convention
Refugees or persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act (the Act).
[2]
Yawar
Abbas, who is thirty-two years of age and an Information Technologist, is the
principal claimant; Mona Fatima relies on his narrative.
[3] The basis of his fears are anti-Shia organizations in Pakistan composed of Sunni Muslim extremists namely Sipah-e-Sahaba
(SSP). He joined three Shia organizations between 1988 and 1994. The first
organization was a Shia Boy Scouts Group, (IBS) the second in 1994 was a Shia
social group (KPSIAJ) and the third, that same year, a Shia International
Business Association (JIBA).
[4] In 1995, the President and nine members on the management
committee of KPSIAJ were killed and in May 2000, the Vice-President of that
organization and two of his friends were also killed. The violence was traced
to Sunni extremists.
The
Tribunal’s Decision
[5] The couple
left Pakistan in January of 2002 arriving
that same month in the United States where the principal claimant obtained a work permit visa. However, in
June 2002, he lost his job and could no longer renew his work permit. The
couple remained in the United States from July 2002 until March 2003 without status. That month, they came to
Canada immediately making refugee
claims.
[6] The tribunal
rejected the claims of the couple for a number of reasons:
1. Basing itself on documentary evidence related to Shia victims in
Pakistan, the tribunal found Mr. Abbas did not have a high enough profile to
attract persecution from the Sunni extremists since: (1) the organizations
which he was a member of were not involved in religious events, preaching or
similar activities or with policy; (2) he has never been arrested due to his
involvement in the three organizations and (3) according to his own testimony
he has never been attacked by any of the Sunni extremist organizations he fears
although he testified he received some threats over the phone which were never
acted upon.
2. There was an inconsistency as to when his problems began; 1989 when he
was in high school or 1998-1999. This inconsistency led the tribunal to impune
his credibility about receiving threats over the telephone, some people
throwing stones at his group and writing slogans on the wall of the house
occupied by the Shia organization he belonged. The tribunal concluded the
principal claimant had failed to establish these incidents occurred or that
they would have, singly or cumulatively amounted to serious harm, including
persecution or a threat to life.
3. The applicants filed a letter from a Mr. Hudda, a Minister of Religion
who stated the claimants were in significant danger should they return to Pakistan. The principal claimant testified Mr. Hudda was from Uganda. The tribunal gave no weight to the letter because Mr.
Abbas could not remember when Mr. Hudda had come to preach in Pakistan and had
not established his expertise on country conditions for Shia in that country.
4. State protection was available in Pakistan because major anti-Shia groups had been banned and the principal claimant
had not provided documentary evidence police were involved in any anti-Shia
action. He had never personally asked for protection from the police and the
tribunal discredited the one instance alleged by him of asking the police for
help during his involvement with the Boy Scouts.
5 The couple’s behaviour in the United States, in the eyes of the
tribunal, undermined their fear of returning to Pakistan after being told by their U.S. lawyer in April 2002 their chances of
making a successful refugee claim there was not very high and after 9/11 they
risked being jailed and deported to Pakistan. The tribunal was critical that they took no steps to regularize their
status in the United States or leave for a safe
third country after receiving their lawyer’s advice.
[7] I think it is
fair to conclude, in rejecting the refugee claim, the tribunal did not make a
general finding of credibility against the principal applicant.
Analysis
[8] The
principal argument advanced by counsel for the applicants was a reasonable
apprehension of bias. The applicants argue the
tribunal’s decision should be quashed because its sole presiding member asked
so many irrelevant questions over a substantial part of the hearing of their
claim that a reasonable person would conclude its conduct raised a reasonable
apprehension of bias the tribunal could not render an impartial decision.
[9] I note, at the hearing, the tribunal did not have the benefit of a
Refugee Protection Officer to assist her. On the other hand, the applicants
were represented by legal counsel.
[10] The test which must be met to make out a claim of reasonable
apprehension of bias on the part of an administrative tribunal is well-known.
I quote the often cited passage written by Justice de Grandpré in Committee
for Justice and Liberty v. Canada (National Energy Board), [1978] 1.S.C.R.
369:
…the apprehension of
bias must be a reasonable one held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information.
...that test is “what
would an informed person, viewing the matter realistically and practically-and
having thought the matter through- conclude. Would he think that it was more
likely than not that [the tribunal] would consciously or unconsciously, not
decide fairly.”
[11] From a review of the hearing transcript, it is apparent the tribunal
substantially intervened principally into two areas: (1) the tribunal probed
into how the principal applicant’s sister made a refugee claim in Canada and
what was the nature of that claim; (2) the tribunal inquired into the principal
applicant’s opinions regarding the verdicts of some Ayatollahs, the meaning and
consequences of fatwas, whether Shias’ condemned violence and how the principal
applicant beat himself observing a major Shia holiday.
[12] Counsel for the Minister conceded the tribunal’s questioning about
his sister’s refugee claim in Canada was meandering particularly on the point of how her lawyer had been
retained and whether that lawyer was the same person as the principal
applicant’s lawyer. However, she argued the inquiry into his sister’s claim
was relevant because of section 49 of the Refugee Protection Division Rules
concerning the automatic joining of, inter alia, brother and sister
claims.
[13] Counsel for the Minister also acknowledged the tribunal’s
questioning on the Iranian Ayatollhas views of fatwas’ and the principal
applicant’s opinion on obeying them was irrelevant. She also stated the
tribunal’s other inquiries on how the principal applicant observed his religion
was out of line. She argued no reasonable apprehension of bias had been shown
because the irrelevant inquiry had not been used against the applicants and it
could not be said the questioning revealed the tribunal’s mind was tainted to
the extent the tribunal could not make an independent and fair decision.
[14] As indicia
the tribunal could not make an impartial decision in this case, counsel for the
applicants took me to transcript pointing out the following:
§ At page 584
of the Certified Tribunal Record (CTR) when the principal claimant provided two
versions of his sister’s lawyer’s name, the tribunal indicated his credibility
may be affected;
§ At page 586
of the CTR, the tribunal expressed its frustration about not knowing the nature
of his sister’s claim for refugee status in Canada;
§ At page 590
of the CTR, when his counsel began questioning the principal claimant about why
his profile was different than other Shia living in Pakistan, the tribunal
stated she really did not need to hear that evidence and she could read the
documentary evidence;
§ At page
593, the tribunal embarked upon a completely irrelevant line of questioning
which had nothing to do with the claim.
[15] After reading
the transcript in its entirely, I have reached the conclusion the applicants
have not convinced me the tribunal did not render an impartial decision in
respect of their claims notwithstanding the irrelevant lines of questioning the
tribunal embarked upon. I do so for a number of reasons.
[16] First, it is
clear from the transcript, the principal applicant was a difficult witness in
the answers he gave thus contributing largely and necessarily to several
follow-up questions of clarification posed not only by the tribunal itself but
by his own counsel (see CTR pages 571 to 574, 597, 601, and 602).
[17] Applicants’
counsel before the tribunal (who was different than their counsel appearing
before the Court) pursued many lines of irrelevant areas because he felt the
principal applicant had provided confusing answers which needed to be clarified
because, left untouched, might have represented a contradiction or otherwise
affected the principal applicant’s credibility (see CTR pages 571 to 577, 581
to 584, 585 and 595).
[18] Third, while the
tribunal said she did not need to hear certain evidence, she allowed their
counsel to fully pursue the issue of the principal claimant’s profile (see CTR
pages 591, 592, 604 to 623).
[19] Fourth, while
the tribunal indicates the applicant’s credibility might be affected in an
answer he gave, the tribunal did not make a general credibility finding against
the principal applicant.
[20] Counsel for the
applicants also challenges the tribunal’s findings concerning the principal
applicant’s profile and the one purported inconsistency.
[21] The standard of
review in respect of these findings is set out in section 18.1(4)(d) of the Federal
Courts Act, 1998 which provides that the Court may grant relief if a
tribunal “based its decision or order on an erroneous finding of fact that it
made in a perverse or capricious manner or without regard to the material
before it”, a standard of review equivalent to patent unreasonableness.
[22] I agree with
counsel for the applicants, the tribunal’s finding there was an inconsistency
in his testimony as to when his problems began cannot stand. The transcript
indicates the principal applicant clarified his answer. With that
clarification, which the tribunal did not take into account, there is not
inconsistency (see CTR pages 564 and 565).
[23] I cannot agree,
however, with the submission by counsel for the applicants the tribunal made an
arbitrary or perverse finding concerning the principal applicant’s profile. In
particular, counsel pointed out to photos where he received an award in 1994
from the President of KPSIAJ killed in 1995. He stated, in terms of the Vice
President of that organization who was killed in 2000, a doctor, he was a
volunteer at his clinic. Essentially, on this point, what I am asked to do is
to re-weigh the evidence before the tribunal which is something which I cannot
do. There was evidence before the tribunal to support the finding it made.
[24] Finally, despite
the fact counsel for the applicants had not raised before the hearing the issue
of adequate State protection, I find no merit in his submission the tribunal
selectively picked from the documentary evidence supporting the tribunal’s
views. Counsel for the applicants also referred me to an extract from the U.S.
DOS Report on Pakistan for
2003.
[25] Taking that
element into account, it is not sufficient and does not meet the applicants’
burden to provide clear and convincing evidence adequate State protection for
Shias was not available in Pakistan.
ORDER
THIS COURT ORDERS that this judicial review
application is dismissed. No certified question was proposed.
“Francois Lemieux”
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