Date: 20051129
Docket: IMM-1487-05
Citation: 2005 FC 1608
Ottawa, Ontario, November 29th, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
RIFAT (SULTAN) YOUSAFZAI
AYMAN (AYMANN) REHMAN
UMER REHMAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Protection Board (the "Board") dated February 8, 2005 in which the applicants were found not to be Convention refugees or persons in need of protection for credibility reasons and because there is adequate state protection in Pakistan.
FACTS
[2] The applicants, a mother and two children, are citizens of Pakistan. The principal applicant, Ms. Yousafzai (the "applicant"), claims a well-founded fear of persecution at the hands of members of the Sippah-e-Sahaba ("SSP") who would physically harm her and kidnap her children if they return to Pakistan due to the activities of her husband.
[3] The applicant was born into a Shia Muslim family and is very involved in the religious organization of her Imam Bargah to benefit needy members of the Shia sect. In October 2000, the applicant's husband gave financial support for the construction of the Imam Bargah in Peshawar. That support is claimed to have been publicly announced by their Allama (priest), and the SSP is alleged to have made violent reprisals against the applicant and her husband. Specifically, the applicant claims:
i. on December 22, 2000 her husband was assaulted by SSP members who threatened to kill him if he sought police protection;
ii. in January 2001 she received a telephone threat from the SSP that they would kidnap her children; her husband sought police protection which was not forthcoming;
iii. in April 2001 she was assaulted, was told by her assailants it was a reprisal for attempting to file a police report against the SSP, and required hospitalization for two days; her husband sought police protection which was not forthcoming, and the police advised against offending the SSP;
iv. on June 19, 2001 SSP members assaulted her husband, who required hospital care for two days; they did not seek police protection, thinking it futile;
v. on July 30, 2001 SSP members assaulted her and her husband in their house, which was looted and destroyed; they did not seek police protection, thinking it futile; following this incident the applicant's husband decided they must flee Pakistan.
[4] On August 26, 2001 the applicant and her children arrived in Canada via the United States and sought refugee protection.
THE DECISION
[5] The Board rejected the applicant's claim because she lacked credibility and because there is adequate state protection for them in Pakistan. The panel found the applicant's testimony to not be credible or trustworthy, for which reason she had no subjective fear of persecution. In support of its conclusions, the Board found:
(a) the applicant did not have the high religious profile she alleged;
(b) the applicant's reason for leaving Pakistan was because of kidnapping threats to her children in January 2001, but she delayed leaving the country for 8 months without explanation, and this delay negates her subjective fear of persecution and impugns her credibility;
(c) the applicant was unable to obtain medical documents of hospitalization after her assault in April 2001 or school documents for her children, which could place her in Pakistan at material times. The applicant's failure to provide documentation warrants an adverse inference;
(d) the applicant's testimony that her husband is in hiding in Pakistan is implausible;
(e) the documentary evidence states: the only time women and children were killed was when mosques were attacked; Pakistan's ban of fundamentalist groups in January 2002 led the state to detain militant leaders and monitor their activities, improving conditions for insular minorities; Pakistan continued promoting human rights awareness in police training and is committed to preventing sectarian violence; and
(f) Pakistan has a judiciary, police force, a visible military, and anti-terrorist courts, which have reduced sectarian violence, and provide adequate state protection.
ISSUES
[6] Two issues are raised in this application:
1. Did the Board make a patently unreasonable credibility finding in respect of an issue material to the applicant's refugee claim?
2. Did the Board err in finding that state protection is available to the applicant in Pakistan?
ANALYSIS
Issue No. 1: Did the Board draw a patently unreasonable credibility finding in respect of an issue material to the applicant's refugee claim?
[7] The applicant submits that the Board's cumulative credibility finding is patently unreasonable. Specifically, the applicant submits the Board erred by:
(a) finding the applicant's reason for leaving Pakistan was because of kidnapping threats to her children in January 2001, and drawing an adverse inference from her failure to explain an 8-month delay before her departure;
(b) drawing an adverse inferences from omissions in the applicant's Personal Information Form ("PIF") in relation to her specific day-to-day activities for her religious organization, her husband's fundraising practices, and her children's removal from school;
(c) finding it implausible that her husband in hiding in Pakistan, has not been found by the SSP; and
(d) drawing an adverse inference from the lack of documents, specifically medical records from her hospitalization in April 2001, her national identity card, and her children's school records.
[8] It is not the Court's function to re-evaluate the Board's fact findings on their merits. The Court will intervene where such findings are patently unreasonable, but will not disrupt reasonable findings which the Court would have concluded differently. See Chen v. Canada(Minister of Citizenship and Immigration), 2002 FCT 1194 at paragraphs 4 and 5 where I held:
¶ 4 The Board is an expert tribunal in determining refugee claims. In 2001, the Board heard over 22,000 refugee claims, allowing 13,336 claims and denying 9,551 claims. Moreover, the Board has direct access to the testimony of the witness, and is in the best position to assess the credibility made by the Board is that of patent unreasonableness, see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.). In Aguebor, the Federal Court of Appeal said:
Who is in a better position than that 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.
Before a credibility finding of the Board is set aside (and before leave is granted for an application with respect to a credibility finding), one of the following criteria must be established (or fairly arguable in the case of the leave application):
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.
See Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 at para. 11 per Madam Justice Reed.
¶ 5 Credibility findings of the Board are entitled to the highest degree of curial deference, and the Court will only set aside credibility decisions, or grant leave for applications for judicial review of credibility findings, in accordance with the criteria outlined above. The court should not substitute its opinion for that of the board with respect to credibility or plausibility except in the clearest of cases. For this reason, applicants seeking to set aside credibility findings have a very heavy onus to discharge both at the stage of seeking leave, and at the hearing if leave is granted.
Event triggering flight and delayed departure
[9] In the review at bar, the Board concluded at page 5 of its reasons that the applicant did not have a subjective fear of persecution because the evidence was not credible:
The claimant testified that the reason she left Pakistan was because of the kidnapping threats to her children. She also testified that the telephone call came once in January 2001, and yet she stayed in Pakistan until August 2001. She had no explanation for the delay. The delay in leaving negates her subjective fear and impugns her credibility.
At the hearing, the applicant was asked directly "What was the incident that made you leave Pakistan?" She replied the "Warnings to our children (in January 2001)". The applicant failed to mention the allegation in her PIF about her house being attacked on July 30, 2001 by SSP gangsters who beat her and her husband and destroyed and looted her house. This failure in her viva voce evidence is a reasonable basis to dismiss her credibility, whether it is regarding the delay in leaving Pakistan after the kidnapping telephone threat in January 2001 or whether it is a blatant inconsistency and omission in her viva voce evidence in relation to her PIF.
[10] This credibility finding is central and material to the whole decision. For this reason the Court should not intervene in the Board's decision. Accordingly, it is not necessary to consider the other issues.
[11] Counsel advised that this application does not raise a serious question of general importance which should be certified for an appeal. The Court agrees so that no question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen"
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