Date: 20040520
Docket: IMM-931-03
Citation: 2004 FC 707
BETWEEN:
BILAL AHMAD TAJ
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated January 22, 2003, that the applicant is not a Convention refugee or a "person in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Bilal Ahmad Taj (the applicant) is a citizen of Pakistan and he alleges that he fears persecution based on his political opinion and based on his membership in a social group, the family.
[3] In this case, the IRB determined that the applicant's story was not credible because he was vague, he knew very little about the events surrounding his kidnapping and because his story was riddled with implausibilities and inconsistencies. Among other things, the IRB pointed out the inconsistencies in the Personal Information Form and the applicant's testimony regarding the alleged violence against him during his detention and regarding his trip to the United States. Further, the IRB noted that the applicant's statements about the moment when his parents spoke to the kidnappers and the exchanges he supposedly had with the other kidnapped children were implausible. The panel also assigned little probative value to the medical certificate filed, because the treatment described by the applicant when he testified was not consistent with the information contained in this document. A review of the record supports my finding that the panel could reasonably determine that the applicant lacked credibility.
[4] According to the applicant, the IRB had to consider the fact that children might be unable to testify about circumstances surrounding their earlier experiences and their fear of future persecution. The applicant was 17 years old at the time of the hearing and 13 years old at the time of the events that led him to flee Pakistan. It is clear from the transcript of hearing and from the IRB's reasons, however, that the IRB did consider the age of the applicant, who was represented by an individual from the Refugee Assistance Service (see, inter alia, pages 201 and 202 of the Tribunal Record).
[5] The applicant further argues that the IRB disregarded the documentary evidence indicating that children are often kidnapped for a ransom in Pakistan. This panel did not doubt that some children were victims of kidnapping in Pakistan; what was problematic was really the applicant's credibility. Moreover, as the respondent submits, the documentary evidence cannot in itself be determinative - the applicant must show that he himself has a credible fear of persecution (see Sinora v. Canada (M.E.I.), [1993] F.C.J. No. 725 (F.C.T.D.)(QL) and Alexibich v. Canada (M.C.I.), [2002] F.C.J. No. 57 (F.C.T.D.). Accordingly, the failure to specifically mention the documentary evidence in the panel's reasons does not amount to an error warranting the intervention of this Court, in that the IRB is presumed to have assessed all of the evidence (Canada v. Hundal, [1994] F.C.J. No. 356 (F.C.A.)(QL)).
[6] Finally, the applicant submits that, contrary to the IRB's findings, a lack of subjective fear could not be inferred from his conduct - the delay in leaving one's country must be assessed according to the circumstances of each case (Huerta v. Canada (M.E.I.), [1993] F.C.J. No. 271 (F.C.A.)(QL)). The respondent, for his part, points out that the applicant spent three years in the United States after fleeing Pakistan and before coming to Canada, without ever claiming refugee status. Dubé J. of the Federal Court stated the following in Skretyuk v. Canada (M.C.I.), [1998] F.C.J. No. 783 (QL):
. . . the panel was required to take into consideration the claimants'conduct when they failed to claim refugee status in two countries before arriving in Canada. A claimant travelling through a country that is a signatory to the Convention must claim refugee status as soon as possible, or the claim may not be considered serious. . . .
[7] In fact, the failure to claim refugee status when the claimant is in a country of protection is a factor which goes to the root of the claim and which is considered in assessing the credibility of the claimant's subjective fear (Ilie v. Canada (M.C.I.), [1994] F.C.J. No. 1758 (F.C.T.D.)(QL)). In this case, the applicant lived and studied in the United States for three years without ever seeking protection there. Individuals who really want to protect their lives would not behave in such a way and the IRB was justified in dismissing the claim for this additional reason.
[8] Accordingly, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
May 20, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-931-03
STYLE OF CAUSE: BILAL AHMAD TAJ v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 20, 2004
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: May 20, 2004
APPEARANCES:
Lenya Kalepdjian FOR THE APPLICANT
Marie-Claude Paquette FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lenya Kalepdjian FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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