Date: 20000503
Docket: IMM-2785-99
BETWEEN:
NAJMI SYED
NAHID ZAIDI SYEDA
SHAHRYAR SYED
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS, J.
[1] This is a judicial review application of the decision of the Immigration and Refugee Board, dated April 23, 1999 wherein the Refugee Division determined that the applicants were not Convention refugees.
FACTS
[2] The applicant Najmi Syed, his wife Nahid Zaidi Syeda and their son Shahryar Syed are citizens of Pakistan.
[3] The male applicant claims that he followed his father"s footstep in the political arena. He was a member of the Jammu Kashmir Liberation Front (JKLF) and then a member of the Tehrike Jafaria group.
[4] In 1994, the leader of the Sipah-i-Sabaha was killed and the Sunni community blamed the Shia. The male applicant claims to have organized a public meeting to disclaim any wrongdoing on the Shia"s part, to approximately 600 or 700 people. The applicant was falsely accused of killing the Sunni leader, and he was taken by the police, beaten and incarcerated for several days. A bribe was paid to secure his release. Following his release, he left with his family to Hyderabad for a short period of time.
[5] In 1995, the female applicant claims to have organized with other Kashmiri women and addressed a rally of Khasmiri refugees. The police used force to disperse the demonstration and the female applicant was arrested, detained and beaten. A bribe was later paid for her release.
[6] In February 1997, the male applicant was once again arrested at a political rally, imprisoned, tortured and denied any food or water for three days. Two bribes totalling 80,000 rupees were paid and the applicant was released. The female applicant and her son were also at this rally. She claims that her clothes were torn and her son suffered a bruised arm.
[7] The female applicant who was participating in a procession of Shia and Kashmiri women was attacked by Sunni women. She claims to have been beaten and her clothes torn off.
[8] On two other occasions, the male applicant was assaulted by followers of Sipah i Sahaba and in June 1997, he sold his share of Decent Motors Showroom, following police harassment.
[9] In February 1998, the female applicant claims that several women came to her door, grabbed her and assaulted her, til she lost consciousness. When she regained her senses, she went to the hospital, but was refused admittance unless she went first to the police. The police refused to help her.
[10] In April 1998, masked men from the Sipah i Sahaba broke into the applicants" home and attacked the family. The applicant suffered numerous injuries and had to be hospitalized for one week. The female applicant was injured trying to help her husband and the young son required stitches to his forehead. They claim that the gunmen set the house on fire. The incident was reported to the police, but the police refused to intervene.
[11] Following this incident, the applicants fled Pakistan and reached Canada in May 1998, where they filed a claim for refugee status.
[12] Mr. Syed claims a well-founded fear of persecution, by reason of his political affiliation in the JKLF party and the Tehrike Jafaria, which is a Shia political party.
[13] Ms. Syeda claims a well-founded fear of persecution by reason of family association. She also filed an independent claim based on discrimination and persecution.
[14] The young son"s fear is based upon that of his father.
ISSUES
| [15] #1 Did the Refugee Division base its decision on an erroneous finding of fact in rejecting Ms. Herman"s report and was the finding of fact made without regard for the material before it, in so far as the reasons for the decision make no mention of evidence presented by the applicant, such as Dr. Wynne"s report and the letter from JKLF? |
| #2 Did the Refugee Division err in law in assessing the applicant"s credibility by basing its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it? |
| #3 Did the Refugee Division err in finding that state protection was available to the applicants? |
| #4 Did the Refugee Division err in finding that an Internal Flight Alternative was available to the applicants? |
ANALYSIS
| #1 Did the Refugee Division base its decision on an erroneous finding of fact in rejecting Ms. Herman"s report and was the finding of fact made without regard for the material before it, in so far as the reasons for decision make no mention of evidence presented by the applicant, such as Dr. Wynne"s report and the letter from JKLF? |
[16] The applicants contend that the panel ought to have accepted Ms. Herman"s report.
[17] The Refugee Division stated in its Reasons, which were rendered orally:
| On the matter of medical evidence presented by the claimant, I note that the medical report was prepared by a general practitioner who is not a registered psychologist or psychiatrist, and certain aspects of statements outlined in page 3 of her report, where the medical practitioner states that it is her belief that it is extremely difficult, almost impossible, for Mr. Syed to confabulate or misrepresent the truth, is a statement that the panel, without understanding the methodology or the rigour of the examination, finds difficult to weight. |
[18] It is clear from the Reasons, that the panel was confused about the two reports submitted. It referred to Ms. Herman"s report as a medical report prepared by a general practitioner. Whereas, Dr Wynne"s report was medical and she was the general practitioner. Ms. Herman was a counsellor with the equivalent of a Master of Arts degree in psychology. However, the transcript reveals that the panel was in fact discussing Ms. Herman"s report.
[19] Ms. Herman found the applicant to be credible and wrote her report based on the symptoms identified by the applicant. The Refugee Division did not reject Ms. Herman"s report. However, it found it very difficult to weight Ms. Herman"s conclusions that the applicant was not confabulating the truth, particularly since the panel pointed out several inconsistencies and implausibilities in the applicant"s story.
[20] Justice Reed concluded in Gosal v. Canada (M.C.I.), (March 11, 1998) IMM-2316-97 (F.C.T.D.):
| Counsel for the applicant argues that the Board erred because it made no reference to a psychiatrist's report that had been placed in evidence. I am not persuaded that in all instances the Board has to refer to the psychiatrist's report. It will depend on the quality of that evidence and the extent to which it is central to the applicant's claim. When such reports are nothing more than a recitation of the applicant's story, which the Board does not believe, and a conclusion based on symptoms, which the applicant has told the psychiatrist are being experienced, then, Boards cannot be faulted for treating such reports with some degree of scepticism. When they are based on independent and objective testing by a psychiatrist, then, they deserve more consideration. |
[21] In my view, the Refugee Division did not base its decision on an erroneous finding of fact, by weighing the evidence, as was its duty to do. The panel examined the evidence but was reluctant to give it considerable weight seeing its own conclusion as to the credibility of the applicant. The panel was not willing to allow Ms. Herman to usurp its role as the trier of fact. I am convinced that there is an error here.
[22] The applicants take further issue with the fact, that the panel failed to mention certain document presented before it, such as the medical report prepared by Dr. Wynne and the letter submitted by the JKLF.
[23] The Federal Court of Appeal held in Florea v. Canada (M.C.I.), (June 11, 1993) A-1307-91 (F.C.A.) that a presumption exists to the effect that all documentary evidence was taken into consideration. Justice Hugessen concluded:
| The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. |
[24] Recently Justice Evans held that the failure by the panel to mention significant evidence presented could warrant the Court"s interference. In Cepeda-Gutierrez v. M.C.I. (1998), 157 F.T.R. 35, he explained:
| The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result. |
| On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. |
| However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. |
[25] In this case, Dr. Wynne"s report details the male applicant"s story and concludes that the applicant"s injuries are consistent with his story from a medical point of view. Dr. Wynne works on the premises that the applicant is credible. In her report, she aimed to match the scars pointed out by the applicant to the persecutory events. In her conclusions, she found the scars to be consistent with trauma. Dr. Wynne could not positively assert that the injuries were a result of the events described, but in her opinion they were consistent with it. Just as they could have been consistent with non-persecutory events. The panel"s foremost duty was to determine if the applicant was credible, it found that he was not and therefore rejected Dr. Wynne"s report. In my view, this is not the kind of relevant information, that Justice Evans was referring to in Cepeda-Gutierrez , supra.
[26] As to the letter from the JKLF, the transcript reveals that the last persecutory event took place in 1987. The transcript reveals the following:
| Mem. Vanderkooy: May I ask just to understand this, the problems, the reason why you left Pakistan, is not because of the JKLF; it"s because of the Sepah-i-Sahaba? |
| Mem. Vanderkooy: Perhaps we could ask it this way: When was the last occasion the Claimant alleges he had a problem or a persecution because of the JKLF. |
| Claimant: The major incident with regards to my involvement with the JKLF was the fact that my father was arrested and he was detained. That is the major incident. |
| Pres. Member: So, the last major incident was in 1987, in the JKLF? |
| Claimant: That is right, yes. |
[27] Since the latest persecutory event occurred in 1987, and the applicant did not leave Pakistan til 1998, I really do not see the relevance of this confirmation letter. The Refugee Division was not under a duty to mention it in its Reasons.
| #2 Did the Refugee Division err in law in assessing the applicant"s credibility by basing its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it? |
[28] The Federal Court of Appeal held in Aguebor v. M.E.I. (1993) 160 N.R. 315:
| 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. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. |
[29] In the present case, the panel noted several inconsistencies in the applicants" claim. It noted that the male applicant was evasive on the issue of the Tehrike Jafaria"s militant activities. It found it implausible that the applicant organized a meeting with 600 to 700 persons attending, without the presence of the president of the organization or a member of the executive. The panel found the newspaper article most damaging. It noted several inconsistencies in the newspaper article submitted, regarding the typeface, size of text, grammar, spelling and quality of writing and journalism and the alignment of the letters and columns layout were inconsistent with other articles found in the paper. The panel had equal concern regarding the female applicant"s credibility. It also noted that the female applicant contradicted her husband as to the residency issue.
[30] In my view, the Refugee Division based its decision on the evidence presented. It detailed its reasons and pointed to the implausibility in the applicants" story. Having done so, this Court cannot intervene.
| #3 Did the Refugee Division err in finding that state protection was available to the applicants? |
[31] La Forest J. on behalf of the Supreme Court of Canada in Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689, stated that:
| Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively reasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state. |
| The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant. |
[32] The Refugee Division acknowledged documentary evidence presented by the applicants describing sectarian violence in Pakistan. However, it noted that equal complementary evidence proves that the current Pakistan government is attempting to limit the activities of both Shia and Sunni militant groups, through curfews, troops, and increased police funding.
[33] The Panel noted that the sectarian violence is worst in Punjab and mostly in the North. Based on the evidence before it, the Panel concluded that although state protection is not perfect, it is afforded to Shia in Pakistan.
[34] In my view, it was not unreasonable to conclude as it did.
| #4 Did the Refugee Division err in finding that an Internal Flight Alternative was available to the applicants? |
[35] In Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 the Federal Court of Appeal held :
| The idea of an internal flight alternative is "inherent" in the definition of a Convention refugee (see Mahoney J.A. in Rasaratnam, supra, at page 710); it is not something separate at all. That definition requires that the claimants have a well-founded fear of persecution which renders them unable or unwilling to return to their home country. If claimants are able to seek safe refuge within their own country, there is no basis for finding that they are unable or unwilling to avail themselves of the protection of that country. |
| On the one hand, in order to prove a claim to Convention refugee status, as I have indicated above, claimants must prove on a balance of probabilities that there is a serious possibility that they will be subject to persecution in their country. If the possibility of an IFA is raised, the claimant must demonstrate on a balance of probabilities that there is a serious possibility of persecution in the area alleged to constitute an IFA. |
| Thus, IFA must be sought, if it is not unreasonable to do so, in the circumstances of the individual claimant. This test is a flexible one, that takes into account the particular situation of the claimant and the particular country involved. This is an objective test and the onus of proof rests on the claimant on this issue, just as it does with all the other aspects of a refugee claim. Consequently, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so. |
[36] The panel noted that the documentary evidence shows that the worst sectarian violence is limited to Punjab and the North. It noted the existence of many areas in Pakistan where the majority of Shia resides, and thus concluded that the applicants had an internal flight alternative. The applicant did not convince me otherwise.
[37] This judicial review should be dismissed.
[38] Both counsels have not submitted any question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
May 3, 2000
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