Date: 20040604
Docket: IMM-2338-03
Citation: 2004 FC 799
Ottawa, Ontario, June 4, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
KHAN CHOUDHARY FATEH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated March 10, 2003, wherein the Board determined that the Applicant was not a Convention Refugee nor a person in need of protection.
ISSUE
[2] Was it patently unreasonable for the Board to conclude that the Applicant lacked credibility?
[3] For the following reasons, I answer in the negative and will therefore dismiss the application.
BACKGROUND
[4] The facts were summarized by the Board as follows. The claimant is a 52-year-old citizen of Pakistan who claims a well-founded fear of persecution by reason of his political opinion.
[5] He has been a member of the Pakistani Muslim League, Nawaz Sherif Group (PML(N)) since 1980. He played an active role in the 1997 campaign, such as the organization of a gathering in Jhelum City. He was threatened on a few occasions during the 1997 campaign. The claimant became acting vice-president of the PML(N) Jhelum Unit in December 1997 until April 1998. Subsequently, he was elected vice-president on April 10, 1998, a position which he kept until January 2002.
[6] On March 23, 2001, the Alliance for the Restauration of Democracy (ARD) organized a convention in Lahore. The PML(N) having joined the Alliance, the claimant was active in the preparation of this convention. He was summoned to the local police station and threatened that he had to stop his actions, otherwise he would be arrested and charged. During the local election of July 2001, the claimant worked for the PML(N) candidate in his ward. Three days prior to the election, he was personally threatened by members of a recently formed pro-government faction of PML, namely PML Quaid-e-Azam (PML(Q)) when returning from his door-to-door activities.
[7] On January 22, 2002, the claimant organized a meeting of PML(N) members at his home in Jhelum City. The purpose of the meeting was to talk against the military coup and to call for the return of democracy. That evening, the police raided his house. He was at his farm at the time, and on being informed by his wife of the raid, and the fact that the police was looking for him, he decided to seek refuge in Lahore.
[8] On January 23, 2002, he contacted a lawyer and learned that false charges had been filed against him for having spoken against the military government and for having held a meeting at his residence.
[9] On January 23, 2002, the claimant made the decision to leave Pakistan. He met an agent on January 26, 2002 and arrived in Canada on March 8, 2002. He claimed refugee status on March 13, 2002. Since his arrival in Canada, he learned that a warrant for his arrest had been issued, and that the police raided his house on three occasions.
CONTESTED DECISION
[10] The Board determined that there were implausibilities in the Applicant's claim for protection. It held that the Applicant's allegation that there was a private meeting of PML(N) members (about 30 people of which only 10 were non-members) to pressurize the government was an inconsistent statement. The Applicant's credibility was also undermined in the Board's eyes, by the fact that he added in his testimony that the purpose of the meeting was also to criticize the police, an information that was not included in his Personal Identification Form (PIF) or in his answer to counsel. The Board also held that since the meeting was a private one, it was not illegal according to the documentary evidence. Consequently, there was no basis for the registration of a First Information Report (FIR) by the police against the Applicant. Finally, the Board held that the Applicant's behaviour was inconsistent with his alleged subjective fear. The Board concluded it was not plausible that the Applicant would think of using his own passport to leave Pakistan if charges had been laid against him. Furthermore, since the FIR was registered on January 24, 2002, the Applicant would have left earlier than March 2002 if he had been genuinely fearing for his safety in Pakistan.
ANALYSIS
[11] It is a well-established principle that this Court cannot intervene with the Board's findings of fact, credibility in this case, unless it is demonstrated that the Board's conclusions are patently unreasonable (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[12] The Board's conclusions regarding the Applicant's credibility are based on the inconsistencies and lack of plausibility found in his testimony. The Board clearly stated these inconsistencies and contradictions.
[13] Firstly, the Board did not believe that the meeting of January 22, 2002, was held to pressurize the military regime. I agree with the Applicant that holding private meetings to attract new members to his political party in order to create a critical mass necessary to influence the government in place, though an indirect method, was probably one of the few options available. The military government had forbidden public political gatherings and had therefore removed the possibility of demonstrating and protesting in public. Yet, this Court cannot substitute its opinion to that of the Board; there needs to be a patently unreasonable error in order for an intervention to be warranted. I am satisfied that the rest of the reasons given by the Board show that the overall credibility assessment made was not patently unreasonable. On the issue of the meeting held January 22, 2002, the Board also confronted the Applicant with the fact that he had not mentioned his criticizing the police during the meeting, either in his PIF or in his answers to counsel, but the Applicant did not provide a satisfactory explanation.
[14] Secondly, it was reasonably open for the Board to conclude that if the meeting of January 22, 2002, was a private meeting, there was no reason to bring a FIR against the Applicant since only public meetings are illegal according to the documentary evidence. The Applicant relies on Human Rights Watch World Reports of 2001 and 2002, which were before the Board, to argue that it is not only public political meetings that are raided by the police but that anyone who assumes a visible role and speaks against the military regime can be targeted by the authorities. The Board assessed all of documentary evidence it was presented with and was entitled to draw its own conclusion in light of it.
[15] Thirdly, the Board reviewed the documentary evidence and held that the Applicant's profile did not correspond to that of persons who may be harassed by the government, since he is not a top leader in his party. Even though I might have come to a different conclusion on this, I will not intervene because this determination is not capricious or perverse (Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296, (T.D.) (QL) at paragraph 14.
[16] Finally, the Board questioned the Applicant's subjective fear on the basis of his testimony that he initially intended to attempt leaving Pakistan by using his own passport. The Board concluded that this is implausible if the police had registered a FIR against the Applicant and were looking to arrest him. Indeed, the fact that the Applicant sought an agent's help to arrange for his exit from the airport does favour him but it does not take away the fact that thinking about using one's true passport in the alleged circumstances (i.e. with a FIR registered against the Applicant) is extremely risky. Finally, the fact that the Applicant did not leave the country earlier than he did militates towards a lack of subjective fear of persecution.
[17] In conclusion, to use the words of MacKay J.in Akinlolu, supra, at paragraph 14, even if this Court "might itself have come to a different conclusion on the evidence it will not intervene unless the Applicant establishes that the decision of the panel is essentially without foundation in the evidence".
[18] Consequently, the application for judicial review is dismissed.
[19] Neither counsel recommended the certification of a question of general importance. No question will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No question of general importance is certified.
"Michel Beaudry"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2338-03
STYLE OF CAUSE: KHAN CHOUDHARY FATEH v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 1, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE BEAUDRY
DATED: June 4, 2004
APPEARANCES:
Stewart Istvanffy FOR THE APPLICANT
Andrea Shahin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy
Montreal, Quebec FOR THE APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec FOR THE RESPONDENT
Email this Content