Date : 20031201
Docket : IMM-4221-02
Citation : 2003 FC 1399
Ottawa (Ontario), this 1st day of December, 2003
PRESENT : The Honourable Mr. Justice Michel Beaudry
BETWEEN :
HABIB SULTAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated August 15, 2002, where the Applicant, Habib Sultan, was denied the Convention refugee status.
[2] The Applicant is a citizen of Pakistan who alleges the presence of a well-founded fear of persecution on the ground of religion and membership in a particular social group. Broadly, his claim is based on the fact that he fears persecution by the Pakistani police and members of the extremist Sunni Muslim organization Sipah-e-Sahaba of Pakistan (SSP) because he is an active member of the minority Shia Muslim Group.
[3] The claim was assessed by the Board on all three protection grounds of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The Board rejected the Applicant's claim because of credibility issues. Having assessed the evidence presented and given detailed reasons, it concluded that the Applicant's testimony was neither credible nor trustworthy and that no credible evidence was presented that there is a serious possibility the Applicant would face a risk of torture or a risk to his life or a risk of cruel and unusual treatment or punishment should he return to Pakistan.
ISSUE
[4] Did the Tribunal err in finding that the Applicant was not credible?
[5] For the following reasons, I answer no to this question and consequently, this application for judicial review will be dismissed.
BACKGROUND
[6] The Applicant is a thirty-nine year old citizen of Pakistan who belongs to a family that is known to be active in the local Shia religious and community activities. He served as a "Zakir" (reciting texts of the Shia Muslim religion) in his area's Imambargah and earned a living operating his father's farms. It would appear that the minority Shia Muslims and the Sunni majority lived in relative peace until 1995 when the SSP set up their executive office in the area and began harassing Shias.
[7] The Applicant testified that because of his religious and community activities, he was the victim of numerous acts of religious persecution from December 1995 until his departure from Pakistan in April 2001. These acts, which included anti-Shia graffiti painted on his home, beatings, death threats and stone throwing, were reported to the police who apparently took no action.
[8] According to the Applicant, in November 2000, he and some other Shia members decided to construct a dispensary in memory of his grandfather, and the Applicant started a fundraising campaign. The Applicant's father also donated a piece of land for the dispensary. According to the Applicant's testimony before the Board, SSP militants beat and threatened to kill him if he did not stop his activities.
[9] On March 13, 2001, these incidents culminated with unknown persons opening fire at him and the police refusing to accept his complaint as well as his request for protection. On March 15, 2001, while the Applicant was at his farm, police raided his home demanding that he present himself to the police station. The Applicant fled to Islamabad in order to avoid police arrest and while he was there, police raided his home as well as his relatives' homes and a warrant for his arrest was issued on June 21, 2001.
APPLICANT'S SUBMISSIONS
[10] The Applicant essentially claims that the Board wrongly based its decision regarding his credibility on erroneous findings of fact that it made in a capricious manners without regard for the material before it.
RESPONDENT'S SUBMISSIONS
[11] The Respondent submits that the Board concluded that the Applicant lacked credibility on the basis of the numerous improbabilities, contradictions and omissions found in his testimony.
CONTESTED DECISION
[12] The Board rejected the Applicant's refugee claims because they found that the claimant's testimony was neither credible nor trustworthy.
STANDARD OF REVIEW
[13] The only ground for this application is the credibility and plausibility findings of the Board. The Board is an expert tribunal in determining refugee claims and has direct access to the testimony of the witness, and is usually in the best position to assess the credibility of the witnesses. Accordingly, the standard for reviewing findings of credibility made by the Board is that of patent unreasonableness. In Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), the Federal Court of Appeal said:
[...] 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. [...]
[14] In accordance with Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144, at paragraph 11, (T.D.) (QL), before a credibility finding of the Board is set aside, one of the following criteria must be established:
1. The Board did not provide valid reasons for finding that an Applicant lacked credibility;
2. The inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
3. The decision was based on inferences that were not supported by the evidence; or
4. The credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
[15] Credibility findings of the Board are therefore entitled to the highest degree of deference, and should only be set aside in accordance with the criteria set out above. With respect to credibility or plausibility, the Court should not substitute its opinion for that of the Board except in the "clearest of cases".
ANALYSIS
[16] In its decision, the Board rejected the Applicant's claim and determined that he is not a convention refugee, nor a person in need of protection. The Board provides detailed reasons in rendering its decision and clearly takes into account the incidents brought forth by the Applicant and even goes so far as to enumerate several in its reasons. Moreover, the Board does not simply list a series of facts, but provides an analysis of the evidence before concluding that the discrimination that the Applicant faces does not cumulatively constitute persecution, nor is the harm that the Applicant fears serious enough to deny him his core human rights if he were to return to Pakistan. In fact, the Board stated at pages 4, 5 and 6 of its decision:
[...] The Claimant failed to meet his burden of proof that lies upon him to establish with credible or trustworthy evidence that he is a person in need of protection.
[...]
For instance, the claimant's problems from his religious opponents, leading to his departure from Pakistan, seem to have become aggravated and intensified following the decision of the claimant and some senior members of the Shia community, in November 2000, to construct a dispensary in his village. One of the reasons the claimant was particularly targeted personally was his active involvement in the creation of a dispensary in his village, for which his father donated a piece of land. However, the claimant failed to produce credible evidence that his father actually donated this land. The claimant testified that in order to donate a land the donator must register the transfer of land with the "Land Registrar" office.
[...]
The claimant's involvement in the creation of the dispensary was central to his claim because it would have resulted in the alleged false First Information Report (FIR) and the alleged police interest in him that forced him to leave Pakistan. His failure to establish this issue with credible evidence seriously affected his credibility. However, in assessing the entire evidence presented the panel concludes that the claimant lacked in credibility when he stated that he suffered assaults and harassment amounting to persecution from his religious opponents since 1995.
To me, this conclusion indicates that the Board not only considered all of the evidence before it but also turned its attention to the issue of whether the Applicant's fear cumulatively amounted to persecution.
[17] It is also implied by the Applicant that in its analysis, the Board failed to consider factual elements such as the Applicant's involvement with the police. On this issue, Justice Tremblay-Lamer stated the following in Bobrik v. Canada (Minister of Citizenship and Immigration) (1994), 85 F.T.R. 13, at paragraph 13 (F.C.T.D.):
Thus, even when the state is willing to protect its citizens, a claimant will meet the criteria for refugee status if the protection being offered is ineffective. A state must actually provide protection, and not merely indicate a willingness to help. Where the evidence reveals that a claimant has experienced many incidents of harassment and/or discrimination without being effectively defended by the state, the presumption operates and it can be concluded that the state may be willing but unable to protect the claimant.
In order for a well-founded fear of persecution to be established, it is necessary that the Applicant prove a subjective fear to be then combined with the state's inability to protect.
[18] The decision in Ward v. Canada (Minister of Employment and Immigration), [1993] 2 S.C.R. 689 clearly specifies that it is the claimant's responsibility to present clear and convincing evidence that a state is unable to provide protection. Here, the Board bases its decision on documentary evidence that demonstrates the government's willingness to address the issue of religiously motivated violence and discrimination against minorities. For example, the Board considered that according to "available documentation the Pakistani Government has been quick to respond to outbursts of sectarian violence, although their action has not effectively curtailed sectarian murders".
[19] The evidence demonstrates that, since the problems seemed confined to the local level, several other reasonable options were available to the Applicant such as relocating to another city, like Lahore or Rawalpindi. In the Board's opinion, if the Applicant did not feel safe because of his activities, he could have considered distancing himself, even temporarily, from the area where he felt danger to his safety. The Board was justified in considering the other options that were open to the Applicant because the issue of state protection is far broader than the availability of police protection alone. In this case, the Applicant has not convinced me that the Board erred in concluding that the state does provide protection.
[20] In my view, the Board has properly considered the facts in this matter and the conclusion it reached is not patently unreasonable.
[21] Counsel did not suggest a serious question of general importance. No question will be certified.
ORDER
THIS COURT HEREBY ORDERS that:
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
______________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4221-02
STYLE OF CAUSE: Habib Sultan and
The Minister of Citizenship and Immigration
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: November 19, 2003
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Michel Beaudry
DATED: December 1, 2003
APPEARANCES:
Jean-François Bertrand FOR APPLICANT
Annie Van Der Meerschen FOR RESPONDENT
SOLICITORS OF RECORD:
Jean-François Bertrand FOR APPLICANT
Bertrand, Deslauriers
Montreal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec
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