Date: 20030627
Docket: IMM-456-02
Citation: 2003 FCT 806
Ottawa, Ontario, this 27th day of June, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
AKHTAR ARFAN
JABEEN FAKHRA
AKHTAR NTASHA
AKHTAR AYISHA
AKHTAR MOHAMAD AHMAR
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of the negative decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the ABoard@) rendered on January 22, 2002. The Board held that the applicants were not Convention refugees.
Facts
[2] Mr. Akhtar Arfan (the applicant), a 38-year old citizen of Pakistan, claimed refugee status on the ground that he is persecuted for his political opinion as a member and supporter of the Pakistan Muslim League (PML). His family claims refugee status as members of a particular social group, and base their claims on his claim. The applicant=s family consists of his wife, Mrs. Fakhra Jabeen, and three minor children, Ntasha, Ayisha and Mohamad Akhtar.
[3] In his Personal Information Form (PIF), the applicant stated that he joined the Muslim Students Federation while in university and formally joined the PML in 1989. While operating a drug distribution store in partnership with his brother, the applicant supported and worked for the PML in the 1990 and 1993 elections. In 1996, the Pakistan People=s Party government of Benazir Bhutto announced that elections were to be held in February 1997.
[4] The applicant stated that the local ward president appointed him as the campaign in charge of PML candidates in the ward and that he was to arrange meetings, door-to-door canvassing and posting of posters. On election day 1997, the applicant acted as polling agent, and was entrusted to ensure that no false votes were cast. The PML won the election and Nawaz Sharif became Prime Minister.
[5] On October 12, 1999, General Musharraf took control of the country and arrested the Prime Minister. The applicant and other PML supporters publicly protested that action on November 29, 1999. On November 30, 1999, the applicant=s house was raided and he was taken into custody by the police for three days. He was tortured by the police who repeatedly hit him on the foot with the butt of a rifle. On receiving medical care, the doctors decided to amputate the toes and the applicant was in hospital for forty days. The applicant stated that the police denied ever having had him in custody.
[6] The applicant stated that it took him awhile to come back to a normal life. He was full of agony and hatred against the police and miliary authorities.
[7] On April 6, 2000, Nawaz Sharif was sentenced to life imprisonment. The PML decided to protest this decision and the applicant spoke openly against it. The applicant states that on May 26, 2000, he joined a rally, along with Nawaz Sharif=s wife, in Lahore, where he was arrested, but released. The applicant=s evidence is that on July 28, 2000, the police asked him to stop his activities but he was not dissuaded and continued to speak out against the regime on July 28, 2000, and September 20, 2000.
[8] On October 12, 2000, B one year after the military coup B the applicant participated in a protest march destined for Islamabad. The police stopped the procession and asked the marchers to go back. When the march continued, the police threw tear gas shells. The applicant went to Lahore to stay with relatives. He later discovered that the police had been to his house and that there was a First Information Report (FIR) and warrant issued against him for inciting people against the government. The applicant and his family then left the country and arrived in Canada on October 25, 2000.
The Board=s Decision
[9] The Board concluded that the applicant was not a Convention refugee. It found that the applicant=s oral testimony lacked spontaneity throughout the hearing, that questions had to be repeated many times, and that clear answers could not be obtained. When the Board questioned the applicant about his election campaign activities in 1997, he answered in a general way stating that he had done door-to-door canvassing, put up posters, and organized some meetings. The Board stated that the applicant could not say how many polls there were in the Sialkot district where his candidate was registered, but that Ahe then adjusted his story, and added he was only responsible for his local ward.@
[10] The Board noted that the applicant gave a somewhat more credible description of his alleged political activities as a polling agent. But the Board did not find that these activities as described could be considered a threat to the applicant=s political foes or the government. The Board stated that the applicant may have sat as a polling agent, but did not believe that he was an active PML member as alleged.
[11] The Board noted that the event that prompted the applicant to leave the country was the protest of October 12, 2000. Noting that this protest followed a government ban on public political demonstrations, the Board asked the applicant how such a rally could be Apeaceful@ if it was unauthorized and stated that the applicant Awas at a loss for an answer.@
[12] The Board noted that the applicant stated that he was shocked and terrified when he realized that the police had filed a FIR against him. The Board questioned why the applicant had not tried to leave after being tortured and maimed in 1999. The Board stated that it was surprised at the applicant=s response that it was not easy to leave one=s family and business and that he Adid not see the future that dark@ at that time. The Board found that the applicant was not credible on this point, stating at page 3 of its decision:
...It seems quite implausible that following such a traumatic physical aggression, requiring a period of over one month in hospital and several months rehabilitation, the claimant would simply think in terms of Acoming back to a normal life@ and resuming public political activities hardly three months later, running in the streets, eluding police attacks again and again (on April 5, May 25, July 28, September 10 and October 12, 2000), while on crutches and maintaining at the same time an important drug distributing company...
[13] The Board found the applicant=s delay in leaving the country following the torture undermined his subjective fear and shed serious doubt on his story as a whole. The Board stated that it did not believe that the claimant lost his toes as a consequence of police torture, nor did it believe that he participated in the events described.
[14] The Board stated that, since it did not believe the police or military authorities wished to arrest the claimant, it did not give probative value to the documents adduced to that effect. The claims of the applicant and his family were rejected.
Issues
[15] The applicant raises the following issues on judicial review:
(a) Did the Board render a patently unreasonable decision in finding:
(i) that the applicant gave Ageneral@ answers regarding his responsibilities during the 1997 election campaign?
(ii) that the applicant Aadjusted@ his testimony concerning his polling responsibilities?
(iii) that the rally of October 12, 1999 was not Apeaceful@?
(iv) that it was impossible for the applicant to resume his political activities three months after his injuries?
(v) that it was implausible and non-credible that the applicant did not leave after sustaining severe foot injuries but left only after false charges were filed and an arrest warrant issued?
(b) Did the Board err in basing its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it?
Standard of Review
[16] The applicant challenges both findings of fact and findings of credibility. Credibility assessment is properly characterized as a question of fact and it is trite law that the appropriate standard of review for a finding of fact is whether the finding is patently unreasonable. Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (QL); Syndicat canadien de la fonction publique, section local 302 c. Ville de Montréal, [1997] 1 S.C.R. 793 at 844. With respect to the standard of review for findings of credibility based on plausibility determinations, the Federal Court of Appeal in Aguebor v. M.E.I. [1993] F.C.J. No. 732 (QL), (1993), 160 N.R. 315, at 316 wrote: A...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@.
Analysis
[17] In response to the Board=s finding that he lacked clarity and detail at the hearing, the applicant submits that he answered adequately and in detail all questions posed to him by the presiding member. The applicant points out that the transcript contains details that cannot reasonably be described as Ageneral@. The applicant states that he recounted that he went door-to-door asking people to support his candidate, that he organized meetings and that he carried out the wishes of the candidate with the help of other active members. The applicant argues that, in the circumstances, the presiding member cannot impugn his credibility on the basis that the testimony was not descriptive enough.
[18] I have read the portions of the hearing relating to the applicant=s description of his political duties and I am of the view that the Board erred in finding that the applicant gave Ageneral@ answers. The applicant answered the questions posed by the presiding member and there was no indication at the hearing that further detail was desired. Indeed, on more than one occasion, the Presiding member, in her preamble to questions put to the applicant, requested that he state his reply Abriefly@. Consequently, upon considering the transcript of evidence before the Board, I find that the panel erred in finding that the claimant=s description of his political activities was Ageneral@ and therefore inadequate.
[19] The applicant submits that he did not Aadjust@ his story as stated by the Board, and that his PIF narrative is consistent with his testimony at the hearing. The applicant states that in his PIF he stated that he was in charge of the campaign for PML candidates in his ward, and that on election day he was appointed as polling agent for the PML candidates from his area polling station. At the hearing, the applicant notes that he did not know the total number of polling stations in his ward but stated that he was in charge of two polling stations, one for each gender.
[20] In its decision, the Board stated:
The claimant said he organised them [meetings] on his president=s advice. Asked how many polls there were in the Sialkot district where his candidate was registered, the claimant could not say. He then adjusted his story, and added he was only responsible for his local ward.
[21] The hearing transcript shows that the applicant stated that Ahis ward was number 25" and that he was in charge of the campaigns of two candidates running in his constituency, one provincial and one national. He stated that he had the responsibility as a Acampaign in charge, for the election day@. He also stated that he had responsibility to start the election on time on election day.
[22] The hearing transcript shows the following exchange:
(President) Q: How many polling stations were there for the one candidate?
A: In my ward, you=re asking?
Q: Well, for the one candidate how many polling stations were there; if you know?
A: Two
(Claimant=s counsel) Q: Are you referring to which area when you say Atwo@, sir?
A: These are two schools. One was kept for males, the other one was kept for females.
Q: In which area is it?
A: In my ward, sir.
Q: In your ward there were two: one for men and one for women.
A: Yes
Q: Okay
...
(The President)
Q: That was not my question earlier. My question was how many polling stations were there for your,B well, (inaudible) given two names after that, but let=s say (inaudible), the provincial assembly you were in charge of this particular candidate, as you say here. So, there were two polling stations in your ward. How many polling stations were there for him in general?
(the Member)
Q: Do you know that?
A: I don=t know, ma=am.
[23] It is not clear from the documentary evidence how the elections were organized. The Board apparently expected that the applicant, since he was helping to manage the pre-election campaign of his candidates, ought to have had knowledge about the number of polling stations set up on election day. The applicant stated that his ward was number 25 and that he was responsible for two polling stations on election day. The Board wanted to know how many polling stations were located in the ASialkot district@ where his candidate was registered. The evidence does not show how the districts, wards, and polling stations were organized on election day.
[24] I find that the Board erred in finding that the applicant Aadjusted his story@ concerning the number of polling stations in his district. Upon reviewing the evidence, I am of the view that there are no inconsistencies in the evidence that would warrant making an adverse credibility finding based on this minor point.
[25] In its decision, the Board stated that the October 12, 1999 rally (held in recognition of the one-year anniversary of military rule) was supposed to be Apeaceful@, according to the claimant, but that the police threw tear gas and made arrests. The Board stated:
Asked whether the procession had been authorized, since it followed the government ban on public political demonstrations, the claimant hesitated and eventually said it was not. Asked to explain then how such a rally could be Apeaceful@if it was unauthorized, the claimant was at a loss for an answer.
(Emphasis added)
[26] The applicant submits that the Board=s inference that a rally cannot be both unauthorized and peaceful is patently unreasonable. I agree. Whether a rally is unauthorized has no bearing on whether it is peaceful. The applicant stated that the rally was intended to be peaceful, but that the police used tear gas and made arrests. In any event, the accurate characterization of the October 12 rally does not appear to be of material relevance to the applicant=s claim.
[27] The Board stated that it was implausible that the applicant would suffer a traumatic injury to his foot, remain in hospital for over a month and then resuming public political activities by Arunning in the streets, eluding police attacks@ only three months later, beginning April 6, 2000. The Board also noted that the applicant was also on crutches and running a drug distributing company at the same time.
[28] The applicant submits that the April 6, 2000, event was not a procession, since he stated in his PIF narrative that on April 6 the Pakistan Muslim League decided to protest against the decision [to give Nawaz Sharif a life sentence] and that he openly criticized the decision and asked everyone to join the struggle for the restoration of democracy. The applicant states that this was not a Aprocession@. He notes that at the hearing he stated that it took 4-5 months for his foot to heal, and that May 25, 2000, was the first rally in which he took part after his November 30, 1999, injuries.
[29] The period between November 30, 1999, and April 6, 2000, is over four months, rather than three as noted by the Board. According to the applicant, his healing and rehabilitation required 4-5 months. The panel found it difficult to believe that the applicant actually carried out the political activities and rallies in the fashion recounted by the applicant, in addition to running his family business. In my view, the Board misapprehended the evidence upon which it based its plausibility finding. The nature of the applicant=s activity was not a procession and it occurred 4, rather than 3, months after the amputation. The conclusion drawn may have been different had this evidence been properly appreciated. I am of the view that the Board erred in drawing this negative plausibility inference.
[30] The Board stated that it did not find it plausible or credible that a FIR delivered against the applicant at his home would be the moment the claimant felt that his Alife was in danger@ when compared to the alleged torture and amputation of his toes undergone the previous year.
[31] The applicant submits that the Board=s finding is manifestly unreasonable, because the existence of the FIR and arrest warrant mean that the police will now have the power to detain him. The applicant submits that the fear of detention is warranted in light of his treatment at the hands of police during his previous detention, all of which causes him to fear for his life.
[32] I am of the view that the Board=s plausibility finding is arbitrary and capricious. By November 1999, the applicant had first-hand knowledge of the kind of treatment he would receive in custody, so when the FIR and warrant issued in 2000, it stands to reason that the applicant could expect similar or worse treatment if detained and therefore his subjective fear at that point would be warranted.
[33] The applicant explained that he was thinking of his family and his business and that it was not easy to leave one=s country. The Board did not accept this explanation. The Board has an obligation to consider explanations provided by an applicant. It failed to do so and therefore erred in its conclusion.
[34] The Board found that it was not plausible that the applicant would flee Pakistan when he became aware of the issuance of the FIR and arrest warrant against him, given his past treatment and torture. I have already determined this plausibility finding to be arbitrary and capricious and made without regard to the evidence before the Board. Given that this erroneous finding is central to the Board=s decision rejecting the applicants= refugee claims, and in view of the other errors reviewed in these reasons. I am of the view that the Court=s intervention is warranted. Consequently, this application for judicial review will be allowed.
[35] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the Convention Refugee Determination Division of the Immigration and Refugee Board rendered on January 22, 2002, is allowed.
2. The matter is referred to a newly reconstituted panel.
3. There is no question of general importance for certification.
AEdmond P. Blanchard@
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-456-02
STYLE OF CAUSE: Akhtar Arjan et al. v. MCI
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: May 28, 2003
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: June 27, 2003
APPEARANCES:
Mr. Jean-François Bertrand FOR APPLICANT
Ms. Jocelyne Murphy FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Jean-François Bertrand FOR APPLICANT
Montréal, Québec.
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Montréal, Québec
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