Date: 20030902
Docket: IMM-3981-02
Citation: 2003 FC 982
Ottawa, Ontario, this 2nd day of September, 2003
Present: The Honourable Justice James Russell
BETWEEN:
AHMED ALI, SINNA ALI, HASHAM ALI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") for judicial review under the Federal Court Act, R.S.C. 1985, c. F-7 of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") rendered July 12, 2002 (the "Decision"), wherein the Board determined that Ahmed Ali (the "Applicant"), Sinna Ali (the "Applicant's Wife") and Hasham Ali (the "Applicant's Son") are not Convention refugees.
BACKGROUND
[2] The Applicant was born into a devout Shia' Muslim family in Pakistan and claims he followed his father's footsteps in supporting the Shia' community.
[3] He also claims that, in February 1999, he delivered a public speech at his Imam Bargah against the militant and fanatic policies and actions of the Sepah-Sahaba ("SSP") in Pakistan. He indicates that, in this speech, he commented on the graffiti that was written by the SSP in his area. The speech was allegedly broadcast through speakers outside of the Imam Bargah.
[4] As a result of this speech, the Applicant claims that he was later attacked and physically assaulted by five SSP members. He says that, because of fear, he did not report this incident to the police. He claims to have been treated for injuries sustained in this attack at one of the local hospitals called Al Noor.
[5] In July 1999, the Applicant was allegedly attacked by unknown persons who threatened to kill him. They robbed him of his belongings and he suspected they were SSP thugs. He claims to have reported this incident to the police, who refused to take any action on his behalf.
[6] The Applicant further claims that, on May 17, 2000, a Majilis at his home was attacked by members of the SSP. Many members of the Shia' Muslim sect were present at the time. The Applicant claims to have been badly beaten up. He says the police did quickly arrest some suspects but they were released after a bribe was paid.
[7] Again, in December 2000, the Applicant claims that his house was attacked by SSP members. He allegedly reported this incident to the police, but they once again failed to take any action on his behalf.
[8] Another important allegation is that, on February 2001, his shop was attacked and looted, and goods were destroyed. The night watchperson came to inform the Applicant of this incident. He went to the shop on his own. After examining the situation, he claims that he went to the police to report the matter.
[9] He says that the police officer at the station was asleep and he was told to return to the station the following morning, which he did at approximately 7:00 a.m. Subsequently, at approximately 9:00 a.m., he returned to his shop with two police officers for an inspection. He claims that the police made a report and told him they would contact him later. He claims he was never contacted and, again, no action was ever taken on his behalf. He indicates that he sold his shop soon after this incident.
[10] In May 2001, the Applicant claims he was arrested and detained for five days by the police for allegedly uttering insults against the Prophet Mohammed. He claims that he was released only after his father paid a bribe to the police of 30 000 rupees.
[11] The Applicant's wife informed the Board that she had received anonymous telephone calls from unknown persons stating that her son and her husband would be killed. This was additional information that was not included in the narrative portion of the Personal Information Form ("PIF").
ISSUES
[12] The Applicant raises the following issues:
Did the Board err by focussing microscopically on the Applicant's statements made at the port of entry as compared to oral and written evidence presented at the hearing?
Did the Board err in making unreasonable plausibility findings?
Was there a proper evidentiary basis to support the Board's findings on the Applicant's credibility?
Did the Board seek, review and consider objective documentary evidence supporting the Applicant's claims?
Standard of Review
[13] I must first determine the appropriate standard of review for this case.
[14] In Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 the Federal Court of Appeal discussed the standard of review for Refugee Division decisions at paragraph 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.
[15] The Court should not seek to re-weigh evidence before the Board simply because it would have reached a different conclusion. As long as there is evidence to support the Board's finding of credibility and no overriding error had occurred, the decision should not be disturbed.
ANALYSIS
[16] The Applicant argues that the Board was overly zealous in assessing inconsistencies between his PIF and the port of entry notes. In some cases, this appears to be true but, in my opinion, the Board did not err in finding the Applicant lacked credibility based on some of the cumulative discrepancies that it noted. I agree with the Respondent, of course, that the Board was in the best position to gauge the Applicant's credibility and to determine issues of plausibility. The Decision contains many instances where the Board had difficult choices to make in this regard and, in my opinion, reached conclusions that should not be disturbed by this Court. It is not necessary to mention every such instance, but there are several examples that go to the heart of this application.
[17] The issues surrounding date discrepancies are relatively minor and not sufficient on their own to make an adverse finding of credibility. However, in my opinion, the Board did not act in a patently unreasonable manner in finding that the Applicant lacked credibility in relation to the nature of his employment in Pakistan. The POE notes indicate that the Applicant is a trades-person, in the steel lathe business, whereas the Applicant claims in his PIF to have been a grocery store owner. The Applicant contends that he has provided a plausible explanation for this important inconsistency, but the explanation is that he didn't say he was in the steel lathe business and whoever made the notes just got it wrong.
[18] In this regard, then, the Applicant relies upon Ali v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1035 (Fed. T.D.) where Reed J. noted:
8 Lastly, the Board refers to statements in the applicant's 'port-of-entry notes' and finds these to be inconsistent with statements he made later. The applicant gave seemingly credible explanations as to why the port-of-entry notes differed from the true story. More importantly, however, it is clear that those notes were filled in by someone whose knowledge of English was limited, and whose understanding of the questions being asked was unclear (e.g. the applicant checked the box indicating that he had never been convicted of a criminal offence, but then on the line asking "place of conviction, if different than place of offense", he wrote 'New Dalhe, India'.
[19] The inconsistencies relating to the nature of the Applicant's employment are of great relevance in two areas. First of all, a major portion of the Applicant's claim relates to the attack on his store so that if he was not, in fact, a store owner, but was in the steel lathe business, the whole store episode is called into question. Secondly, if the Applicant provides contradictory accounts of his employment then his credibility in general is undermined and this will impact upon the Board's attitude towards the rest of his narrative. The Applicant says the contradiction does not exist because the POE notes are wrong and he did not say he was in the steel lathe business. There was no internal contradiction in his viva voce testimony on this point and he made it clear that he was a grocery store owner who did technical work on the side for his Imam Bargah. But there is no explanation or evidence as to why the POE notes should be wrong in this case. It is not possible for me to apply Ali, supra, and conclude that the Board committed a reviewable error in this regard.
[20] On the other hand, the Board found it implausible that, given tensions between Shia' and Sunni Muslims, the Applicant's speech at his Imam Bargah would be broadcast over loud speakers out on to the street. I find that the Board did commit a reviewable error in this regard.
[21] The Respondent cites this Court's decision in Alizadeh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 11, (F.C.A.) to advance the proposition that the Board is entitled to make an adverse finding of credibility based upon the implausibility of the Applicant's story alone. In Wang v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1180 (Fed. T.D.), Noël J. distinguished Alizadeh, supra, but still decided in favour of the Respondent in concluding that the implausibilities identified by the Board were not unsupported by evidence:
19 Counsel for the Respondent submits that the Board clearly detailed the reasons behind its findings and that it was open to it to decide adversely in the context of a claimant's credibility where her story was simply implausible. Counsel relies on the Alizadeh v. M.E.I., January 11, 1993, A-26-90 [Please see [1993] F.C.J. No. 11], where Stone J.A. stated:
"The adverse findings of credibility were not based on some internal inconsistencies or contradictions but on implausibility. We do not see that here the Refugee Division's findings were not supported by the evidence (...)
20 This decision is very fact specific and does not establish a general proposition of law: an implausibility finding by the Board must accord itself with the evidence. For example, the Court of Appeal recently stated in Chen v. M.E.I., October 4, 1993, A-30-91 [Please see [1993] F.C.J. No. 996]:
"The Refugee Division made no adverse findings as to the Appellant's credibility. It accepted his story as outlined above. It found his fear of persecution not to be well-founded mainly because it found it implausible that, had the Chinese authorities regarded his case seriously, they would have released him from jail and permitted him to keep the exit visa he had to allow him to perform outside China. All of the implausibilities perceived had to do with the tribunal's appreciation of the attitude and efficiency of the authorities and nothing to do at all with the Appellant's conduct."
21 The Court of Appeal allowed the appeal.
[22] But in the case at bar, there was no real basis for the Board to assess the nature of the sound system in a Pakistani Imam Bargah. The Board strung together a series of hypotheses to form a theory that it then used to support an implausibility finding. The logic is as follows: militant attacks occasionally occur at places of worship, including Imam Bargahs, and it is not plausible that an Imam Bargah would open itself up to attack by having an inflammatory speech broadcast to an audience that might include extremist Sunnis.
[23] Clearly, such institutions have been subject to terrorist attacks, but this does not automatically mean that one would assume that they collectively refrain from any interaction with the public so as to avoid any violent confrontation. There is no documentary or other evidence supporting the Board's theory that underlies this implausibility finding. The Board merely says the "Panel finds it implausible that such a speech would be carried out over the speaker, when there was tension between both the Sunnis and Shias at the time." The broadcasting of the speech was a key element in the Applicant's narrative because it initiated the attacks against him and identified him as a target for extremist violence.
[24] The Board also makes generalizations about practices, customs and traditions in other cultures and uses them to attack the Applicants credibility. For instance, the Board found it odd that, upon hearing of the attack on his business, the Applicant visited the site of his store on his own and did not take his father or brothers. The Board said "[g]enerally culturally in Pakistan in a joint family, all the males would go together, not just one person, fearing repercussions." The Applicant was asked at the hearing about why his brothers or father did not attend at the scene with him after the attack on his business. He noted that his father was too old, and his brothers were too young, and he was in a general state of shock. Where the only real contradiction is between a reasonable explanation given by a claimant, and a speculative hypothesis advanced by the Board about general cultural behaviour, there is no real basis to question the Applicant's credibility.
[25] The Respondent argues that the Board was entitled to disbelieve all ensuing incidents that flowed from the Iman Bargah speech that made the Applicant a target of the SSP because it found the Applicant to lack the profile of the usual Shia' target of Sunni violence. Once again, I do not see how the Board came to this conclusion based on the evidence before it. The Board indicates that "the majority of Sunnis get along with their Shiite brethren." This does not specifically address the circumstances of the Applicant. There did not appear to be any documentary evidence before the Board indicating that a Shia' giving an inflammatory speech before his Imam Bargah would not become a target of violence. The Board just didn't accept that the speech was broadcast in the way described by the Applicant on the basis of hypothetical conclusions it had reached about why the speech was unlikely to be carried over a speaker system.
[26] Generally speaking, the Decision alternates between acceptable findings on credibility and unacceptable conclusions on specific areas of the Applicant's testimony where the Board is patently unreasonable. The issue before me, therefore, is whether certain of the Board's findings in credibility are so flawed that, in the context of the Decision as a whole, they constitute a reviewable error. This is not an easy question to answer but, as balance, I think it would be unsafe to allow this Decision to stand and I find that the Board was patently unreasonable in this regard.
[27] As regards the documentary evidence before the Board, the Respondent cites this Court's decision in Nzuzi v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 556 where Rouleau J. indicates at paragraph 12 that "the Board is under no obligation to refer to all items in the documentary evidence it relied upon in arriving to its conclusion." I agree with this statement, but it is clear that there is a difference between referring to "all items" as opposed to "some items". In this case the Board made little if any direct reference to documentary evidence. While the Board did acknowledge sectarian violence in Pakistan, it failed to adequately assess the impact of that violence on the Applicant, given his particular circumstances. This was also a reviewable error.
[28] For these reasons, the application for judicial review is allowed.
ORDER
THE COURT HEREBY ORDERS THAT:
1. The application for judicial review is allowed, the July 12, 2002, decision is set aside and the matter is remitted for redetermination by a differently constituted panel.
2. No question will be certified.
"James Russell"
J.F.C.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3981-02
STYLE OF CAUSE:AHMED ALI et al
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 22, 2003
REASONS FOR ORDER
AND ORDER BY: RUSSELL, J.
DATED: September 2, 2003
APPEARANCES BY: Mr. Robert I. Blanshay
For the Applicants
Ms. Amina Riaz
For the Respondent
SOLICITORS OF RECORD: Mr. Robert I. Blanshay
Barrister & Solicitor
49 St. Nicholas Street
Toronto, ON M4Y 1W6
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20030902
Docket: IMM-3981-02
BETWEEN:
AHMED ALI et al
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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