Date: 20050120
Docket: IMM-533-04
Citation: 2005 FC 94
Toronto, Ontario, January 20th, 2005
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
KISHWER FATIMA (a.k.a. KISHWAR FATIMA)
AQSA ALI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Kishwer Fatima is a Pakistani citizen. Her six-year-old daughter, Aqsa Ali, is a United States citizen by virtue of having been born there. The Refugee Protection Division (RPD) of the Immigration and Refugee Board, in a decision dated January 2, 2004, determined that neither is a Convention Refugee nor a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA.).
[2] Ms. Fatima and her husband are Shia Muslims. In Pakistan, her husband provided food, clothing, shelter and transportation to other Shia Muslims. These activities allegedly drew the attention of the Sipah-e-Sahaba (SSP). Ms. Fatima reports that the SSP threatened to kill her husband and, in February, 1998, set fire to the family home. Ms. Fatima, who was then pregnant, lost consciousness and was hospitalized. Her husband arranged for her departure to the United States where her parents and siblings had been residing since 1995. Ms. Fatima left Pakistan in May, 1998, and gave birth to her daughter, a child with special needs, on August 24, 1998.
[3] In August, 2000, Ms. Fatima's father applied to immigrate to Canada with his dependants, including Ms. Fatima. She was excluded from his application because she did not meet the definition of an overage dependant. She came to Canada in February, 2001, and claimed to have a well-founded fear of persecution at the hands of the SSP based on membership in a particular social group, Shia Muslim religious activists. Approximately one year later, her daughter arrived in Canada and was added to Ms. Fatima's claim.
[4] The RPD concluded that Ms. Fatima lacked the requisite subjective element of a well-founded fear. Its determination was primarily premised on its finding that Ms. Fatima lacked credibility as a witness. Alternatively, the board reasoned that even if Ms. Fatima had established the existence of the subjective element (which she had not) she had not demonstrated that state protection would not be reasonably forthcoming if she returned to Pakistan at this time. Consequently, her claim was rejected. Her daughter's claim was rejected on the basis that since she had no legal status in Pakistan, the only country of reference was the United States. There was no evidence to establish that Aqsa Ali would suffer persecution in the United States.
[5] No issue is taken regarding the board's determination in relation to the child. Only the rejection of Ms. Fatima's claim is challenged. In this respect, both the credibility finding and the conclusion with respect to the availability of state protection are said to be in error. I have determined that Ms. Fatima's application for judicial review must be dismissed.
[6] The negative credibility finding is not patently unreasonable. It was open to the RPD to reject Ms. Fatima's repeated explanations that certain details were omitted from her personal information form (PIF) because of her lawyer's (not counsel at the hearing) advice. Given the nature of the omissions, and in particular the time of the alleged fire and her resultant hospitalization (the precipitating event giving rise to her departure from Pakistan), the assumptions made by the RPD were both reasonable and fair.
[7] I agree that the negative inference based on Ms. Fatima's failure to report in her PIF that her parents and siblings had been living in New York city when she arrived there in 1998 was not material to the claim. However, in my view, it was open to the RPD to draw an inference based on this omission regarding her willingness to be truthful about the more fundamental aspects of her claim. It was Ms. Fatima's statements in her PIF that she was alone in New York, started to live in many different places and had her daughter alone in Manhattan that prompted the board's comment. While the omission was not material to the claim, neither was it determinative.
[8] With respect to her husband's activities, the RPD concluded, on the basis of the documentary evidence, that sectarian violence was directed at prominent members of the Shia community and that Ms. Fatima and her husband did not fit this profile. Ms. Fatima points to excerpts from the evidence that she maintains suggest otherwise, but the reasons of the board disclose that it considered the possibility of random and non-targeted sectarian violence in relation to the applicant. It is for the board, not the Court, to evaluate and weigh the documentary evidence. Ms. Fatima has not demonstrated that the RPD erred in this regard. Similarly, the allegation that, by sending her back to Pakistan, the RPD is, in effect, denying Ms. Fatima her universal right to education is without merit. It is also an inaccurate characterization of the board's reasoning.
[9] There were additional findings. Ms. Fatima does not take issue with the board's refusal to accept her explanation for the omission in her PIF that the SSP had her picture nor does she address the finding in relation to her misrepresentation of marital status and number of dependents on her application for immigration. She does, however, submit that the RPD ought to have accepted her PIF explanation regarding her delay in seeking refugee status and her failure to seek protection in the United States. That explanation differed from the two explanations (each of them different) that she provided at the hearing. She provides no argument as to why the RPD should be disposed to accept one of her explanations over the others. I agree that delay in making a claim, in and of itself, will not negate subjective fear. The RPD, here, did not rely solely on Ms. Fatima's delay.
[10] Findings of credibility are reviewed on a standard of patent unreasonableness. Ms. Fatima has not persuaded me that the credibility findings of the RPD are patently unreasonable. It follows that it was open to the RPD to conclude, based on its findings, that she lacked a subjective fear.
[11] Having arrived at this determination, I need not deal with the arguments in relation to state protection. However, I would not be inclined to disturb the finding regarding state protection in any event. I agree with the respondent that the submissions are tantamount to a disagreement with the weighing of the evidence. The board acknowledged the articles referred to by Ms. Fatima's counsel and concluded that the preponderance of objective evidence supported a finding of state protection. In my view, the reasons of the RPD reveal that it carefully weighed all of the documentary evidence and the submissions before arriving at its determination. Its finding that as of the date of the hearing Ms. Fatima would be able to access adequate state protection, should she return to Pakistan, was open to it and was not unreasonable on any standard of review.
[12] Counsel did not suggest a question for certification and none arises.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-533-04
STYLE OF CAUSE: KISHWER FATIMA, AQSA ALI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 18, 2005
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: JANUARY 20, 2005
APPEARANCES:
Ali M. Amini FOR THE APPLICANTS
Sharon Stewart Guthrie FOR THE RESPONDENT
SOLICITORS OF RECORD:
Amini Carlson LLP FOR APPLICANTS
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20050120
Docket: IMM-533-04
BETWEEN:
KISHWER FATIMA (a.k.a. KISHWAR FATIMA)
AQSA ALI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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